Citation Nr: 1333444	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  09-40 761	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) for the time period from September 22, 2008 to July 20, 2010.

2.  Entitlement to an initial rating greater than 70 percent for PTSD for the time period since July 21, 2010.

3.  Entitlement to an initial rating in excess of 10 percent for residuals of right (major) wrist fracture.

4.  Entitlement to an initial compensable rating for bilateral hearing loss.

5.  Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) for the time period prior to July 21, 2010.

6.  Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos and/or herbicide exposure and/or as secondary to service-connected asbestosis.

7.  Entitlement to service connection for peripheral edema (claimed as water retention), to include as due to herbicide exposure and/or as secondary to service-connected asbestosis.

8.  Entitlement to service connection for a heart disorder, to include as due to herbicide exposure and/or as secondary to service-connected asbestosis and/or medications used to treat service-connected asbestosis.

9.  Entitlement to service connection for a hypertension, to include as due to herbicide exposure and/or as secondary to service-connected asbestosis.

10.  Entitlement to service connection for a skin disorder, to include as due to herbicide exposure and/or as secondary to service-connected asbestosis.


REPRESENTATION

Veteran represented by:	David L. Huffman, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

T. Mainelli, Counsel


INTRODUCTION

The Veteran served on active duty from June 1968 to April 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

A review of the Virtual VA electronic records storage system reflects that some relevant VA clinic records are associated with the electronic record only.  The RO has considered these documents, last updated in July 2012, in the most recent supplemental statement of the case (SSOC) dated July 2012.  There are no additional, relevant records located in the Veterans Benefits Management System (VBMS).

In May 2010, the Veteran formally raised the issue of entitlement to TDIU based, in part, on his service-connected PTSD and bilateral hearing loss.  See VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) received on May 20, 2010.  He alleged last working on October 2, 2008.  The Board acknowledges that the issue of TDIU is part and parcel of the claim for the higher initial ratings for PTSD and hearing loss - an issue of the initial rating rather than a separate claim.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).    A March 2011 RO rating decision awarded TDIU effective July 21, 2010.  As the TDIU award does not extend to the date the TDIU claim was filed, the issue remains before the Board on appeal.  See AB v. Brown, 6 Vet. App. 35 (1993).  Therefore, such issue has been included on the title page of this decision.  

The Board also notes that a September 2011 RO rating decision denied service connection for ischemic heart disease (IHD) due to herbicide exposure.  In November 2011, the Veteran's attorney filed a notice of disagreement with this decision.  Given that the Veteran has already appealed a claim of entitlement to service connection for a heart disorder (including cor pulmonale and atrial fibrillation), and IHD is a heart disorder, the Board has assumed jurisdiction over such aspect of the claim.  Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).

In October 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing.  A transcript of that hearing is associated with the claims folder.

In November 2012 and June 2013, the Veteran's attorney submitted additional medical records for consideration in this appeal.  A waiver of RO review of this evidence in the first instance accompanied both submissions.  38 C.F.R. 
§ 20.1304(c) (2013).  Therefore, the Board may properly consider such newly received evidence.

The issues of entitlement to service connection for COPD, peripheral edema, a heart disorder, hypertension, and a skin disorder, as well as the issue of entitlement to TDIU prior to July 21, 2010, are addressed in the REMAND portion of the decision below and are REMANDED to the VA RO.


FINDINGS OF FACT

1.  For the time period prior to February 16, 2009, the Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity due to symptoms such as impairment of affect, decreased memory and concentration, mildly circumstantial and tangential speech, sleep impairment, disturbance of mood and motivation and occasional suicidal thoughts with no intent,  without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment.

2.  For the time period since February 16, 2009, the Veteran's PTSD has more closely approximated occupational and social impairment with deficiencies in areas such as work, thinking and mood due to such symptoms as occasional suicidal thoughts, well below average memory recall, persistent symptoms of increased arousal, significant distress and overall severe symptomatology, without more severe manifestations that more nearly approximate total occupational and social impairment.

3.  The Veteran's residuals of right triquetrum fracture are manifested by limitation of motion without ankylosis. 

4.  For the entire appeal period, the Veteran's bilateral hearing loss is manifested by no worse than Level II auditory acuity in the right ear and Level I auditory acuity in the left ear.


CONCLUSIONS OF LAW

1.  For the time period prior to February 16, 2009, the criteria for an initial rating in excess of 50 percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1-4.14, 4.130, Diagnostic Code (DC) 9411 (2013).

2.  For the time period since February 16, 2009, the criteria for an initial 70 percent rating, but no higher, for PTSD have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1-4.14, 4.130, DC 9411 (2013).

3.  The criteria for an initial rating in excess of 10 percent for residuals of right wrist fracture have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, DC 5215 (2013).

4.  The criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.85, 4.86, DC 6100 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). 

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The Board observes that the Veteran has appealed the propriety of the initially assigned ratings for his PTSD, right wrist disability, and bilateral hearing loss from the original grant of service connection.  VA's General Counsel has held that no VCAA notice is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess, 19 Vet. App. at 490. 

VA has a duty to assist a claimant in the development of the claims.  This duty includes assisting the claimant in the procurement of service treatment records (STRs) 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 Veteran for the claims decided on appeal.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In this case, the Veteran's service treatment records (STRs) as well as post-service VA and private treatment records have been obtained and considered.  Notably, in June 2013, the Veteran's attorney supplemented the record with private and VA clinic records deemed necessary to substantiate the claims.  The RO has also obtained all medical and legal documents pertaining to an award of disability benefits with the Social Security Administration (SSA).  The Veteran has not identified any additional, outstanding records that have not been requested or obtained. 

As will be discussed below, the Veteran's VA clinic records include audiometric and word recognition testing results in November 2007.  The documents clearly reflect that the VA audiologist used an "NU-6" word recognition list, which cannot be used for rating purposes.  See 38 C.F.R. § 4.85(a).  There is no need for further clarification of the type of testing conducted.  See generally Savage v. Shinseki, 24 Vet. App. 259 (2011) (when an examination report is "unclear" or "not suitable for rating purposes," VA has a duty to seek clarification or explain why additional development of clarification is not needed).

VA also obtained VA examinations in November 2008, January 2009, and July 2010 to determine the nature and severity of the Veteran's service-connected PTSD.  Likewise, he was afforded VA examinations in June 2008 and July 2010 to determine the nature and severity of his right wrist disability and bilateral hearing loss.  Neither the Veteran nor his attorney has alleged that such examinations are inadequate for rating purposes.  Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected PTSD, right wrist disability, and bilateral hearing loss as they include an interview with the Veteran, a review of the record, and a full examination, addressing the relevant rating criteria.  Referable to the Veteran's bilateral hearing loss, the Board further finds that the examination report contains all necessary findings, including consideration of the effects the Veteran's service-connected bilateral hearing loss has on his occupational functioning and activities of daily living.  See generally Martinak v. Nicholson, 21 Vet. App. 447 (2007).  Therefore, the Board finds that the examination report of record is adequate to adjudicate the Veteran's initial rating claims and no further examination is necessary.

At his hearing in October 2012, the Veteran described a general progressive worsening of his disabilities so as to support his claim for higher initial ratings.  However, the Board finds no credible lay or medical evidence demonstrating or alleging increased severity of these disabilities since the July 2010 VA examinations to the extent that higher ratings may be warranted.  Thus, there is no duty to provide further medical examination on these initial rating claims.  See VAOPGCPREC 11-95 (Apr. 7, 1995). 

In October 2012, the Veteran was provided opportunities to set forth his contentions during a hearing before the undersigned Veterans Law Judge.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 

Here, during the October 2012 hearing, the undersigned noted the issues on appeal.  Testimony regarding the nature and severity of the symptoms associated with the Veteran's PTSD, right wrist disability, and bilateral hearing loss was solicited.  Additionally, information regarding the impact of such disabilities on the Veteran's daily life and employability was obtained.  As a result of the hearing, additional evidence was solicited from the Veteran's attorney, which was provided to the Board in November 2012 and June 2013.  As such, the hearing focused on the elements necessary to substantiate the Veteran's initial rating claims.  The Veteran has not asserted that there was any prejudice with regard to the conduct of the hearing.  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.  Moreover, the hearing discussion did not reveal any relevant evidence that might be available that had not been submitted with respect to the issues on appeal.  Under these circumstances, nothing gives rise to the possibility that evidence has been overlooked with regard to the Veteran's claims.  As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record.

Overall, the Board finds that the evidence of record is sufficient to decide the claims being decided on appeal and that there is no reasonable possibility that any further assistance would aid in substantiating these claims.  Significantly, neither the Veteran nor his attorney has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims.  Hence, no further notice or assistance is required to fulfill VA's duty to assist him in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

II.  Analysis

The Veteran seeks higher disability ratings for his service-connected PTSD, right wrist disability, and bilateral hearing loss.  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. 

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 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.

If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded).  Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Descriptive words such as "slight," "moderate" and "severe" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision.  38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6.

The provisions of 38 C.F.R. § 4.31 indicate that a zero percent evaluation will be assigned when the symptomatology required for a compensable rating is not shown. 

In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

A.  PTSD

The Veteran's service-connected PTSD is evaluated under the criteria of DC 9411.  See 38 C.F.R. § 4.130.  A 50 percent rating contemplates 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent evaluation 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; intermittently illogical obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.  Id. 

A 100 percent evaluation is warranted where 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. 

The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV).  38 C.F.R. § 4.130.  DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness.  Higher scores correspond to better functioning of the individual. 

Under DSM-IV, GAF scores ranging between 61 and 70 are assigned when there are some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but when the individual is functioning pretty well and has some meaningful interpersonal relationships. 

GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). 

GAF scores ranging between 41 and 50 are assigned when there are 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). 

GAF scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family and is unable to work). 

Symptoms listed in VA's general rating formula for mental disorders 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). 

According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered.  38 C.F.R. § 4.126(a).  In addition, the evaluation must be 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. Id.  Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment.  38 C.F.R. § 4.126(b).

The Board notes that the Veteran holds psychiatric diagnoses other than PTSD, which include major depressive disorder and generalized anxiety disorder.  The Board considers all manifested psychiatric symptoms as being due to service-connected PTSD.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (holding that, when it is not possible to separate the effects of a nonservice-connected condition from those of a service- connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability). 

In September 2008, the Veteran formally filed a service connection claim for PTSD with anxiety and depression.  VA clinic records in October 2008 reflect that the Veteran had a positive depression screen which was suggestive of moderately severe depression.  An October 31, 2008 mental health consultation reflected his report of combat-related nightmares which occurred 3-4 nights a week and affected the next day with irritability, intrusive thoughts of combat, tearfulness and isolation.  The Veteran admitted to thrashing around in his sleep.  His memory and concentration were decreased.  He also endorsed flashbacks, especially when hearing Huey helicopters.  The Veteran described being married for 35 years, having three children and 7 grandchildren with another grandchild on the way.  On mental status examination, the Veteran presented as casually dressed.  His psychomotor activity was manifested by being fidgety while seated.  Eye contact was good.  Mood was "nervous" and affect was appropriate to mood but was tearful from time to time.  The Veteran was able to easily console himself.  His speech was talkative, spontaneous, mildly circumstantial and tangential.  Thought process revealed no flight of ideas or loosening of associations.  Thought content revealed no hallucinations, delusions or paranoia.  The Veteran denied suicidal or homicidal ideation.  Insight was fair.  A Beck Depression inventory was considered moderate.  The examiner diagnosed PTSD and depressive disorder not otherwise specified (NOS), and assigned a GAF score of 55.  The Veteran was prescribed Citalopram and Mirtazapine.

In statements received in November 2008, the Veteran described haunting recollections of wartime events which made him sad and easily angered.  He described having arguments with family members which caused them not to speak to each other for days.  

On VA PTSD examination in November 2008, the Veteran described being married since 1972, having 3 children and 6 grandchildren, and enjoying being with his family.  He had close friends whom he visited.  He had a few fights in the past with the last fight being with his daughter's boyfriend 7 years previous.  He was unemployed and spent his time sitting around and looking at the window.  He occasionally went into town.  He had increased wartime memories with his unstructured time.  On mental status examination, the Veteran was described as appropriately and casually dressed.  His posture and movements were consistent with breathing difficulty.  He was cooperative, friendly, relaxed and attentive towards the examiner.  Affect was normal.  The Veteran's mood was focused on breathing.  The Veteran was unable to perform serial 7's, and completed serial 3's with 1 mistake.  He could spell "earth" forward and backward.  He could not interpret proverbs appropriately.  His orientation was intact to person, time and place.  The Veteran's thought process was unremarkable.  There were no delusions.  He understood the outcome of behavior and that he had a problem.  His intelligence was average.  He described falling asleep easily with psychiatric medications helping him sleep throughout the night.  Without psychiatric medications, he awoke intermittently without being able to return to sleep.  The Veteran did not have any inappropriate behavior, obsessive/ritualistic behavior, panic attacks, homicidal thoughts, or suicidal thoughts.  His impulse control was good without episodes of violence.  He was able to maintain hygiene.  His remote and recently memory were described as mildly impaired.  His immediate memory was normal.

The Veteran had slight problems with performing activities such as shopping and travelling, but had no problems with household chores, toileting, grooming, self-feeding, bathing, dressing/undressing, engaging in sports/exercise, or driving.  However, the Veteran did report becoming restless with traveling and wanting to return home when on vacation, which was more pronounced when running errands.  He became nervous when surprised, and didn't like being touched by people whose identities were concealed (such as Halloween).  He was frustrated due to inactivity caused by his respiratory disorder.  He described right wrist pain, throbbing and swelling when using a drill, and difficulty hearing sounds due to tinnitus.

Following psychological testing, the VA examiner found no Axis I diagnosis and assigned a GAF score of 85.  The examiner stated that the Veteran did not describe significant interference in his lifestyle from anxiety or depression.  He did describe ongoing fatigue related to COPD with his sharply reduced activity level which was likely to be discouraging and depressing.  Overall, the VA examiner found that the Veteran's mental disorder symptoms were not severe enough to interfere with occupational and social functioning.

A December 2008 VA clinic record included the Veteran's report that his PTSD symptoms were 50 percent better when taking medications.  He denied anger outbursts, crying spells, or panic attacks.  He felt able to redirect his attention when intrusive thoughts came over him.  His nightmares had been less frequent and less intense.  He had been interacting well with others.  He denied suicidal or homicidal ideation as well as symptoms of mania or psychosis.  On mental status examination, the Veteran was described as casually dressed.  He was alert and oriented (A&O) in three spheres.  He made good eye contact.  His mood was "good/better" and affect was appropriate.  His speech was non-circumstantial (noncir) and non-tangential (nontang).  There were no flight of ideas (FOI), looseness of associations (LOA), auditory or visual (A/V) hallucinations, paranoia, delusions, ideas of reference (IOR), suicidal ideations (SI), or homicidal ideations (HI).  His attention and concentration were intact.  The examiner offered assessments of PTSD and depressive disorder NOS.

A December 2008 SSA decision found the Veteran disabled due to COPD and pulmonary insufficiency since January 2008.  The Veteran described arthritis in his hands which made it difficult to lift and carry things.  He had quite a bit of hand swelling.  The Veteran's spouse described the Veteran as being too forgetful to pay his bills, and having to be reminded to take medications.  His activities consisted of occasional visits to the grocery store, which lasted 10 minutes in duration.  He had sleep difficulty due to breathing problems.  He could shave, but didn't shave often enough.  He went shopping approximately once or twice a week to the local grocery store for approximately 10 minutes.

The Veteran underwent VA PTSD examination in January 2009.  At that time, the Veteran described depression which occurred regularly, sometimes daily, which was mild and transient since he retired.  He had been married since 1972 and got along well with his spouse.  He also had 3 adult children with whom he got along well.  He had friends with whom he talked to on the phone sometimes, but did not go anyplace anymore.  He sometimes went shopping with his wife.  He read some books, but spent most of his time "hanging around the house."  On mental status examination, the Veteran was described as clean and neatly groomed as well as casually and appropriately dressed.  His psychomotor activity and thought content were unremarkable.  His affect was serious with some periods of appropriate broadening.  His mood was mildly depressed.  Attention was intact.  He was oriented to person, time and place.  There was no impairment of thought process or communication.  He could interpret proverbs appropriately.  The Veteran had sleep difficulty getting, on average, 4 hours per night.  He had difficulty falling asleep, and awoke early sometimes with dreams.  He did not feel as if he got enough sleep to feel rested.  There were no delusions, hallucinations, inappropriate behavior, obsessive/ritualistic behavior, panic attacks, or homicidal thoughts.  He had mildly impaired remote and recent memory which was likely within norms and/or related to anxiety.  He had occasional suicidal thoughts, but no intent or plans.  His impulse control was good with no episodes of violence in the last 7-8 years.  He was able to maintain minimum personal hygiene.  The Veteran's symptoms had a moderate effect on activities such as shopping, engaging in sports/exercise and other recreational activities, and slight effects on household chores.  The Veteran described feeling "smothered" and becoming anxious in crowds.  The Veteran was described a manifesting chronic PTSD which was mild in severity, present daily and lasting for a few minutes.  There were no remissions.  The Veteran described being irritable which caused work-related problems with decreased concentration.

The examiner diagnosed PTSD and assigned a GAF score of 70, which represented mild PTSD symptoms with mild difficulty in social and occupational functioning.  It was noted that the Veteran's COPD led to his no longer working.  The Veteran was further described as experiencing symptoms that would interfere with his ability to concentrate at work to some extent, particularly if other stresses contributed.

By means of a rating decision dated January 2009, the RO awarded service connection for PTSD and assigned an initial 10 percent rating effective September 22, 2008.

In a document received in February 2009, the Veteran argued that his PTSD symptoms were consistent with a 70 percent rating.

A February 19, 2009 private psychological evaluation included the Veteran's report of being on Social Security Disability benefits after having last worked in October 2008.  On examination, the Veteran presented as appropriately groomed and dressed.  He complained of an inability to express his thoughts very well but, during the interview, he expressed an average amount of thoughts with his train of thought coherent absent disturbances of logic or bizarreness.  His speech was relevant and without unusual ideation.  He described his mood as "all right" but stated that he spent his time alone, which made him sad.  His affect was one of sadness and depression.  He endorsed some symptoms consistent with anxiety and described feeling nervous most of the time to the point he could not think.  His mental content consisted of unhappiness, depression, sadness and lack of joy in life.  There were no obvious indications of psychotic distortions, including ideas of reference, hallucinations, faulty perceptions or misinterpretations of consensual reality.  He denied suicidal ideations.  On mini mental status examination, the Veteran scored in the range of normal cognitive function.  He was alert, responsive and oriented.  He had some difficulty with recalling three unrelated words, and he fell well below average on immediate memory testing which indicated limited recall regarding memory deficits in short-term retention as well as with immediate memory.  These findings were typical of those with a history of depression and/or anxiety.  The Veteran's general fund of knowledge was adequate.  The Veteran had some insight into his behavior and could usually distinguish behaviors which would be contrary to social values or that would be personally counterproductive.  He was able to manage his own self-care in all areas of major daily living.  Additional psychological testing indicated severe PTSD symptoms.

The private examination report reflected that the Veteran endorsed daily painful images of traumatic events which were extremely distressing, distressing dreams 2 to 3 times per week, and becoming physically upset on a daily basis by reminders of traumatic events.  The Veteran engaged in avoidance of traumatic events and reminders, he felt distant from other people, was unable to have sad or loving feelings, had difficulty enjoying things, and found it hard to imagine a long life span and fulfilling his goals.  He had persistent symptoms of increased arousal with daily trouble falling asleep, being irritable or having anger outbursts at least once a week, having concentration difficulty, feeling on edge, being easily distracted, staying "on guard," and being easily startled.  The Veteran's disturbances caused significant distress and marked impairment in social, occupational and other important areas of functioning.  He described a worsening of his symptoms after 9/11, and denied having friends.  He had no community, religious or spiritual involvement.  He had no hobbies and did nothing other than sit around the house.

The private examiner diagnosed chronic and severe PTSD, severe single episode major depressive disorder without psychotic features but with melancholic features, and generalized anxiety disorder.  A GAF score of 44 was assigned, which represented a depressed man, unable to work, no friends or leisure activities and major impairment in several areas of functioning.

VA clinic records in March 2009 included the Veteran's report of difficulty with initiating and maintaining sleep.  He fell asleep at approximately 2 am and awoke at 4 am.  He was having intrusive combat thoughts as well as trouble with nightmares, flashbacks, hypervigilance, and easy startle.  He believed his symptoms were manageable.  He denied suicidal or homicidal ideation as well as symptoms of mania or psychosis.  Mental status examination was unremarkable except for report of a "so so" mood."  In April 2009, he reported irritability, nightmares and flashbacks.  His mental status examination was unchanged.  He continued to report sleep problems in May 2009.

By means of a rating decision dated August 2009, the RO awarded a 50 percent rating for PTSD effective to the date of claim, September 22, 2008.

VA clinic records in September 2009 included the Veteran's report of continued sleep difficulty.  He denied suicidal or homicidal ideation as well as symptoms of mania or psychosis.  Mental status examination was unremarkable except for report of a "so so" mood.  A November 2009 VA mental health consultation reflected the Veteran's report of getting approximately 5-7 hours of sleep with treatment.  He described problems with impatience and irritability, but indicated that his problems were manageable.  He "bicker[ed]" with his wife but they got along reasonably well.  Mental status examination was significant for guarded psychomotor activity by sitting sideways to splint his back, and reporting an "okay" mood.

A March 2010 VA depression screen was suggestive of moderate depression due to factors such as anhedonia, sleep difficulty, feeling tired, feeling bad about himself, concentration difficulty, psychomotor retardation, and thoughts of harm to self or others.  A March 2010 VA mental health consultation noted the Veteran's report of irritability as well as occasional nightmares.  He endorsed depression symptoms such as dysphoric mood, decreased interest, difficulty initiating and maintaining sleep, low energy, feeling bad about himself, difficulty concentrating, and occasional thoughts of not wanting to live.  He reported that these symptoms were not on a daily basis.  He denied ever having active suicide or homicidal thoughts.  On mental status examination, the Veteran appeared as casually dressed.  His psychomotor activity was tense while seated.  Eye contact was good.  He described his mood as "a little down," with an affect which was appropriate and congruent to mood.  His speech was talkative, spontaneous, non-circumstantial and non-tangential.  His thought processes revealed no flight of ideas or loosening of association.  His thought content revealed no hallucinations, delusions or paranoia.  He was given assessments of PTSD and depressive disorder NOS.

A July 2010 VA PTSD examination described the Veteran as manifesting severe PTSD symptoms on a daily basis, especially when his anger raged out of control.  The Veteran described reminiscing about combat-related events to the point where he went into a trance and relived his experiences.  He became easily upset and mad.  The Veteran had no qualities of social relations as he isolated inside.  He did not pursue leisure activities other than walking.  The examiner described the Veteran's current psychosocial functioning as deteriorating in part due to physical debility as well as a progression of PTSD.  

On mental status examination, the Veteran appeared as a frail older male using oxygen.  He was cooperative and maintained good eye contact.  His speech was relevant and coherent.  He entertained suicidal and homicidal thoughts but had no intent.  His thought process involved intrusive thoughts, flashbacks and nightmares of Vietnam experiences.  He sometimes awoke early profusely sweating but not remembering his dream contents.  The Veteran's intellectual and sensorial functioning was grossly intact.  He could abstract proverbs, and had intact judgment to simple situations.  He had a communication style of an impatient angry man.  His wife assisted with maintaining minimal personal hygiene due to his physical weakness.  He had short term memory loss, but had "o.k." long-term memory.  He had very obsessive ritualistic behavior such as counting objects all of the time, becoming enraged if his spouse did not perform a task immediately, and having to buy flashlights all of the time.  His rate and flow of speech were "OK" but he had a harsh tone.  He described panic attacks about every 4 to 6 months, and being on oxygen and short of breath made him more anxious.  There was no impulse control deficit except for his rage.  The Veteran was described as continuing to manifest behavioral, cognitive, social, affective and somatic symptoms of PTSD.  The examiner diagnosed PTSD and assigned a GAF score of 45.  The signs and symptoms of PTSD were described as resulting in deficiencies in areas of work, family relations, judgment, thinking and mood.  His functional impairment was serious as he alternated between dissociation/trance state and an enraged/angry state.  He experienced guilt when he hurt his spouse's feelings, and had suicide thoughts.  In general, the Veteran was in a downward spiral and did not have the mental capacity to work.  It was also commented that the Veteran's psychosocial functioning status and quality of life had deteriorated since his last examination.

An August 2010 private psychological assessment included the Veteran's report of having a positive and satisfying marital relationship, but noted that his emotional issues with low frustration tolerance did interfere with their relationship.  He had three adult children, and he considered his family a source of help was they were actively involved in his life.  He was unemployed, receiving Social Security benefits and in poor health requiring home oxygen.  The Veteran's PTSD symptoms included recurrent and intrusive recollections of being in Vietnam, recurrent dreams and nightmares of dead bodies, and dissociative episodes triggered by helicopters, Asian individuals, war documentaries or seeing someone hurt.  He persistently avoided and made significant efforts to avoid thoughts, feelings or conversations associated with combat or military experiences.  He had persistent hyperarousal symptoms including difficulty falling asleep, irritability and outbursts of anger.  He had difficulty concentrating, and experienced hypervigilance and exaggerated startle response.  He described always trying to get his back against the wall.

The Veteran's anxiety was characterized by excessive and persistent daily worry about his family and health.  He found himself ruminating and being unable to control his worry.  His anxiety manifested in hypervigilance such as restlessness and feeling keyed up.  He further described being fatigued, tired, irritable, concentration difficulty and his mind often going blank.  He also had trouble falling asleep and staying asleep.

The Veteran's symptoms of depression were manifested by frequent sadness, crying episodes and a depressed mood.  His depressive symptoms were characterized by sleep difficulty, irritability, argumentiveness, psychomotor retardation, feelings of worthlessness or excessive or inappropriate guilt, concentration difficulty, being pessimistic, difficulty making decisions, and avoiding friendships which had been present every day for the last two years.  The Veteran had not gone two months without meeting the criteria for a depressive disorder.  

On mental status examination, the Veteran presented as alert, fully oriented and generally cooperative.  He was appropriately dressed with good grooming and hygiene.  His expressions and mannerisms were appropriate, and he made good contact.  He related to the examiner in a friendly manner, volunteered information and appeared open throughout the evaluation.  The Veteran's anxiety level was appropriate, psychomotor activity was within normal limits, and motor behavior was primarily calm.  There were no pain behaviors or involuntary movements noted.  He described his mood as "down" with a constricted appearing affect.  His conversations focused on his inadequacies, his concerns about not taking care of his wife, and his worries about his children.  The Veteran's speech was relevant with an appropriate rate and volume.  No aphasia or dysarthria were noted.  Thought processes were spontaneous, logical and coherent.  There was no evidence of any disturbance in form or content of thought.  He denied hallucinatory activity, and no delusions were observed.  The Veteran appeared to have an adequate fund of knowledge, but his mode of thinking was concrete as he was unable to abstract relationships and discriminate fundamental from superficial relationships.  Considering his educational and cultural background, the Veteran's intellectual functioning was estimated to be in the average to low average range.  He was oriented to person, place, time and circumstance.  He appeared to be a good historian with his declarative and procedural memory processes unimpaired.  There appeared to be impairment in delayed recall.  He was able to instantly recite four objects, but only remembered two of the four objects after a twenty minute delay.  He appeared to have moderate impairment with concentration, persistence and pace.  The Veteran struggled with managing his own self-care with his spouse helping him with medication, household chores, preparing meals and finances.  Most days, the Veteran sat in the home and watched television.  The Veteran appeared able to form social judgments, use common sense and understand the rules of conventional behavior.  He denied suicidal or homicidal thoughts or past attempts.  Insight and judgment seemed satisfactory.

Following psychological testing, the examiner diagnosed chronic PTSD, severe recurrent major depressive disorder without psychotic features, late onset dysthymic disorder and generalized anxiety disorder.  A GAF score of 40 was assigned.  The Veteran was otherwise described as having a severe level of functioning impairment with interference in work, household chores and duties, relationships with friends, fun and leisure activities, relationships with family, sex life, general life satisfaction and overall level of functioning in all areas of life.

A September 2010 VA clinic visitation included the Veteran's report of having a good response to psychiatric medications.  He described being less irritable, more patient, having a more elevated mood and being able to initiate and maintain sleep better.  A depression screen was suggestive of mild depression.

A March 2011 VA clinic record noted that the Veteran demonstrated lingering depression which included dysphoria and decreased motivation, which was largely due to his pulmonary status.  He had daily symptoms which waxed and waned in intensity.  He had occasional nightmares and flashbacks which he described as manageable.  His mental status examination was generally unremarkable, and the examiner diagnosed PTSD and major depressive disorder.  A GAF score of 55 was assigned.

By means of a rating decision dated March 2011, the RO awarded a 70 percent rating for PTSD effective July 21, 2010.  The RO also granted entitlement to TDIU, and basic eligibility for Dependents' Educational Assistance, effective July 21, 2010.

Thereafter, a May 2011 VA clinic record (located in Virtual VA) noted the Veteran's report of sleeping about 4 to 5 hours per night.  He still had problems with occasional nightmares and flashbacks, and his wife reported that he had been yelling out in his sleep more so than usual.  At this point, the Veteran felt that his symptoms were not problematic and manageable.  He denied suicidal and homicidal ideation, or symptoms of mania or psychosis.  His mental status examination was significant for a mildly blunted affect.  A GAF score of 55 was assigned.  The GAF score of 55 was continued in September 2011 and January 2012.  In April 2012, the GAF score was increased to 60.  The Veteran was described as doing reasonably well and endorsing no problematic symptoms of depression.  He occasionally became dysphoric with decreased motivation, but mainly his target symptom was irritability.

At his hearing in October 2012, the Veteran testified that his PTSD disability had progressively worsened, and had not been the same as when the appeal period started.  However, he felt that that his PTSD had worsened prior to the effective date for increased benefits assigned by the RO.  He described hearing and seeing things which were not real, which mainly occurred while he was alone.  He was easily angered, but he denied episodes of violence.  He had daily thoughts of hurting himself or others.  He described a persistent ritual of counting items.  He isolated at home.  

      1.  Time period prior to February 16, 2009

The Board finds that, for the time period prior to February 16, 2009, the criteria for a rating greater than 50 percent for PTSD had not been met.  In this respect, for the time period prior to February 16, 2009, the Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity due to symptoms such as impairment of affect, decreased memory and concentration, mildly circumstantial and tangential speech, sleep impairment, disturbance of mood and motivation and occasional suicidal thoughts with no intent, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment.

Here, the lay and medical evidence demonstrates that, for the time period prior to February 16, 2009, the Veteran meets most of the examples supporting a 50 percent rating under DC 9411.  For example, the Veteran has demonstrated a depressed mood, impairment of affect, decreased memory and concentration, mildly circumstantial and tangential speech, sleep impairment and disturbance of mood and motivation.

The Veteran also demonstrates some examples listed as supporting the 70 percent rating under DC 9411.  For example, the Veteran reported suicidal thoughts, but he denied intent.  He described difficulty in establishing and maintaining effective social relationships by his report of arguments with family members and his tendency to isolate himself within the home.  Nonetheless, in December 2008, the Veteran described interacting well with others.

On the other hand, the Veteran did not demonstrate other examples supportive of a 70 percent rating under DC 9411 for the time period prior to February 16, 2009.  For example, the Veteran specifically denied obsessional rituals which interfered with routine activities.  His mental status examinations found no impairment of spatial orientation, thought content, impulse control, or personal appearance and hygiene.  The Veteran did describe suicidal thoughts, but he denied intent.  His speech, at most, was described as mildly circumstantial and tangential speech on one occasion.  The Veteran was described as evidencing "mild" memory loss, which is consistent with the criteria for a 30 percent rating.  While the Veteran reported family arguments, the Veteran nonetheless reported enjoying spending time with his family and having a few friends through phone contact.

Thus, the Veteran does not manifest many examples listed in the criteria for a 70 percent rating for the time period prior to February 16, 2009.

The Board also considers the GAF scores assigned during the time period, which were 55 (September 2008) 85 (November 2008), and 70 (January 2009).  The lower GAF score of 55 is consistent with psychological, social and occupational impairment intermediate between "serious" and "moderate" in degree while the GAF scores of 70 and above are consistent with "mild" severity.  

As required by Maeurhan, the Board must look at all the factors and evidence identified above to determine whether the Veteran met or more closely approximated the criteria for a rating greater than 50 percent for any time prior to February 16, 2009.  When considering the evaluation of the examples which may support a higher rating, the frequency, duration and severity of symptoms, the Veteran's capacity for adjustment, and the examiner assessments of the Veteran's psychological, social and occupational functioning (GAF scores), the Board finds that the Veteran's PTSD has not met or more closely approximated the criteria for a rating in excess of 50 percent for any time prior to February 16, 2009.  

In this respect, the Veteran completed a Beck Depression Inventory in October 2008 which was consistent with "moderate" symptoms.  A depression screen that same month was consistent with "moderately severe" depression.  In November 2008, the Veteran described enjoying his family, occasionally went into town, and described "slight" problems with performing activities such as shopping and travelling.  At that time, a VA examiner commented that the Veteran did not describe significant interference with his lifestyle due to depression or anxiety.  In January 2009, the VA examiner commented that the Veteran described daily depression symptoms which had been mild and transient since his retirement, and that the Veteran's overall symptoms had a "moderate" effective on his activities of daily living.

Taking into account all of these factors as they affect the Veteran's social and occupational impairment, as required by Mauerhan, the Board finds that the evidence establishes that, for the time period prior to February 16, 2009, the Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity due to symptoms such as impairment of affect, decreased memory and concentration, mildly circumstantial and tangential speech, sleep impairment, disturbance of mood and motivation and occasional suicidal thoughts with no intent.  To the extent that the descriptions by the Veteran and his spouse can be construed as supporting a higher rating, the Board places greater probative weight to the clinical findings of the VA physicians who have greater expertise and training than the Veteran and his spouse in evaluating the extent and severity of a psychiatric disability.  There is no doubt of material fact to be resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b).

      2.  Time period since February 16, 2009

The Board finds that, for the time period since February 16, 2009, the criteria for a 70 percent rating, but no higher, have been met.  In this respect, for the time period since February 16, 2009, the Veteran's PTSD has more closely approximated occupational and social impairment with deficiencies in areas such as work, thinking and mood due to such symptoms as occasional suicidal thoughts, well below average memory recall, persistent symptoms of increased arousal, significant distress and overall severe symptomatology, without more severe manifestations that more nearly approximate total occupational and social impairment..

A February 16, 2009 private psychiatric examination report included a description by the Veteran of PTSD symptoms of much greater severity than previously reported.  He described feeling nervous to the point he could not think, lacking any happiness in life, and persistent symptoms of increased arousal and distress which caused marked impairment in all aspects of life.  Mental status examination revealed a well below average memory recall, and psychological testing now indicated "severe" PTSD symptoms.  The GAF score of 44 assigned by the private examiner represented major impairment in several areas of functioning.  

While the February 16, 2009 private psychiatric examination report did not reflect all examples for a 70 percent rating, such as obsessional rituals, impaired impulse control, spatial disorientation and impairment of personal appearance and hygiene, the Board finds that the Veteran's overall PTSD symptoms more closely approximated the criteria for a 70 percent rating under DC 9411.  Thus, an initial 70 percent rating is warranted effective February 16, 2009.

At this point, the Board observes that it cannot be factually ascertained from the record when the Veteran's PTSD increased in severity prior to the February 16, 2009 private psychiatric examination report.  Notably, the Veteran underwent VA the previous month wherein the Veteran described to the VA examiner PTSD symptoms which had no more than a "moderate" effect on his activities of daily living.  The Veteran did not report feeling nervous to the point he could not think, lacking any happiness in life, or persistent symptoms of increased arousal and distress which caused marked impairment in all aspects of life.  

While the Board must be cognizant of potential underreporting of PTSD symptoms by the Veteran on prior VA examinations, the Board cannot factually ascertain from the Veteran's own descriptions that his PTSD disability increased to the severity of the 70 percent level prior to February 16, 2009.  Notably, the Veteran's first statement wherein he reported meeting the criteria for a 70 percent rating was received in February 2009.  At his hearing in October 2012, the Veteran felt that his disability had worsened, but he could not pinpoint the date the increased severity occurred.  Thus, a staged rating is consistent with the Veteran's own testimony.

	3.  Entire Appeal Period
	
The Board further finds that the Veteran's PTSD has not met, or more closely approximated, the criteria for a 100 percent rating under the DC 9411 at any point pertinent to this appeal. 

The Veteran has not manifested gross impairment of thought processes or communication, or delusions, which are listed as examples of the type, extent, and severity of symptoms warranting a 100 percent schedular rating.  There is no lay or medical description of significant impairment of thought process other than occasional suicidal thoughts without intent.  There have been no reports of delusions or hallucinations.  Examiners conducting the Veteran's mental status evaluations have consistently described no thought content abnormalities.  His communication impairment is limited to mildly circumstantial and tangential speech.  Overall, the Board finds that the Veteran has not manifested gross impairment of thought processes or communication, or "persistent delusions," during this period. 

Another factor listed as an example supporting a 100 percent rating is grossly inappropriate behavior, or being a persistent danger of hurting self or others.  The Veteran has not described these aspects of impairment.  He has demonstrated the capability for self-care.  He has voiced passive thoughts of suicide, but expresses no intent.   There have been no reported episodes of agitation or disorientation wherein he was a threat to himself.  Overall, the Board finds that the Veteran has not manifested a "persistent" threat to himself or others as contemplated by the criteria for a 100 percent rating under the General Formula of Rating.

The Board also finds no lay or medical evidence suggesting that the Veteran's psychiatric disability has precluded him from performing activities of daily living, including the maintenance of minimal personal hygiene.   The mental status examinations consistently described the Veteran as well-groomed.

With respect to orientation, there is no lay or medical evidence of disorientation to time or place which is an example supporting a 100 percent rating under the General Formula for Rating.

The Veteran has been described as having mild memory and concentration problems.  However, there is no lay or medical evidence that the Veteran's psychiatric status is or has been so severe at  any point pertinent to this appeal that he has demonstrated memory loss for names of close relatives, his occupational status or his own name which is another example supporting a 100 percent rating under the General Formula for Rating.

The Board has also considered the GAF scores assigned during the time period, which range from 40 to 80.  The Board has relied upon the GAF score of 44 on February 16, 2009 as representing the basis for a higher schedular rating for an earlier point in time than awarded by the RO.  The Veteran's GAF scores reflect no more than serious symptoms with some residual occupational and social capacity, which is not consistent with a finding of "total" occupational and social impairment required for a 100 percent schedular rating under the General Rating Formula for evaluating psychiatric disorders other than eating disorders.

As required by Maeurhan, the Board has looked at all the factors and evidence identified above to determine whether the Veteran has met or more closely approximated the criteria for the a maximum 100 percent rating at any time pertinent to this appeal.  However, when considering the overall evaluation of the examples which may support the 100 percent rating, the frequency, duration and severity of symptoms, the Veteran's capacity for adjustment, and the examiner assessments of the Veteran's overall psychological, social and occupational functioning (GAF scores), the Board must conclude that the Veteran's PTSD has not met or more closely approximated the criteria for a 100 percent rating at any relevant time. 

In this respect, the Veteran, even at his worst, describes maintaining his family relationships.  The Veteran can efficiently converse with the VA examiners, and can generally manage his daily activities on his own.  He is not psychotic or out of touch with reality.  Overall, his PTSD is not shown to manifest the type, extent and severity of symptoms demonstrating "total occupational and social impairment" within the meaning of the rating schedule at any point pertinent to this appeal.  

In so holding, the Board has generally found the statements and testimony of the Veteran and his spouse to be truthful and credible evidence in support of this claim, which has been relied upon in awarding further compensation.  In fact, some of the discrepancy in examination findings and estimates of his overall functioning may be due to the Veteran's reluctance to talk about the severity of his PTSD.  The Veteran's descriptions of symptoms have been heavily relied upon by the Board in awarding a 70 percent rating effective February 16, 2009.

However, even when taking into account this testimony, the Board finds that the criteria for a rating greater than 70 percent have not been met at any time pertinent to this appeal.  To the extent that the descriptions provided by the Veteran and his spouse can be construed as supporting a higher rating still, the Board places greater probative weight to the clinical findings of the private and VA physicians who have greater expertise and training than the Veteran and his spouse in evaluating the extent and severity of a psychiatric disability.  There is no doubt of material fact to be resolved in his favor.  38 U.S.C.A. § 5107(b).  The claim, therefore, is denied.

B.  Right wrist disability 

The Veteran is service-connected for residuals of right wrist fracture.  The RO has assigned an initial 10 percent rating under DC "5299-5212."  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  DC 5299 is used to identify musculoskeletal disorders that are not specifically listed in the schedule, but are rated by analogy to similar disabilities under the schedule.

The criteria of DC 5212 pertain to impairment of the radius.  38 C.F.R. § 4.71a, DC 5212.  The RO asserts that the 10 percent rating represents "malunion of the radius with bad alignment."  Under DC 5213, higher ratings are warranted for nonunion of upper half of the radius (20 percent), or nonunion in lower half of the radius with false movement without loss of substance or deformity (30 percent) or with loss of bone substance (1 inch (2.5 cms) or more) and marked deformity.  Id.

In Butts v. Brown, 5 Vet. App. 532 (1993), the Court held that the selection of the proper diagnostic code is not a question of law subject to the de novo standard of review.  Accordingly, the Court held in Butts that as VA and the Board possess specialized expertise in determining the application of a particular diagnostic code to a particular condition, their determination is due greater deference.  Indeed, the Court has also held that, although the reason for the change must be explained, the VA and the Board may change the diagnostic codes under which a disability or disabilities are evaluated.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

Historically, the Veteran's STRs reflect that he incurred a fracture of the right wrist triquetrum.  There is no reference to a fracture involving the radius or ulna.  Thus, the Board finds that the disability at hand more is more appropriately rated under the criteria for "THE WRIST" (where the triquetrum bone is located) rather then by analogy to the "THE ELBOW AND FOREARM" as done by the RO. 

DCs 5214 and 5215 address limitation of motion of the wrist.  Under DC 5214, a 30 percent disability evaluation is warranted when there is favorable ankylosis in 20 to 30 degrees dorsiflexion in the major wrist.  38 U.S.C.A. § 4.71a, DC.  A higher 40 percent disability evaluation is contemplated for ankylosis of the major wrist in any other position, except favorable.  Id.  A 50 percent rating is assigned for ankylosis of the major wrist when ankylosis is unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation.  Id.

Under DC 5215, a maximum 10 percent rating is assigned when there is limitation of motion of the wrist with dorsiflexion less than 15 degrees or with palmar flexion limited in line with the forearm.  38 U.S.C.A. § 4.71a, DC 5215. 

Normal range of motion for the wrist is 70 degrees of dorsiflexion (extension); 80 degrees of palmar flexion; 45 degrees of ulnar deviation; and 20 degrees of radial deviation.  See 38 C.F.R. § 4.71a, Plate I.

Under DC 5003, degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved.  When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, DC 5003. 

VA regulations also instruct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  DeLuca v. Brown, 8 Vet. App. 202 (1995). 

The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures.  It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40.  The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  38 C.F.R. § 4.45.

Notably, the Court has held that pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint.  38 C.F.R. § 4.59.  The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

As indicated above, the Veteran incurred a fracture of the right wrist triquetrum in service.  He reported being right-handed on his induction examination.  Post-service, a private x-ray examination of the right wrist in December 2001, to investigate complaint of episodic multiple joint pain with swelling, redness and heat, was significant only for a benign cyst within the right triquetrum.  The Veteran was diagnosed with episodic inflammatory arthropathy, suspect polyarticular gouty arthropathy.  He was later diagnosed with seropositive inflammatory arthropathy, possible rheumatoid.

In August 2007, the Veteran filed a service connection claim for right wrist pain.  A November 2007 private medical record was significant for mild tenderness over the right ulnocarpal joint area with some discomfort at end ranges of motion.  The Veteran was diagnosed with secondary osteoarthritis of the right wrist, and prescribed acetaminophen as needed (PRN) and a wrist brace.

On VA joints examination in June 2008, the Veteran described a progressive worsening of right wrist swelling and soreness, especially on use.  He used Excedrin as needed.  He endorsed additional symptoms of stiffness, weakness and tenderness.  He had weekly flare-ups of moderate symptoms, lasting hours in duration, which prevented him from using his "hand for much."  He denied deformity, give-way, instability, episodes of dislocation or subluxation, or effusion.  On examination, the Veteran demonstrated active and passive ulnar deviation from 0 to 25 degrees, radial deviation from 0 to 15 degrees, dorsiflexion from 0 to 40 degrees and palmar flexion from 0 to 60 degrees.  There was pain at the end ranges of motion, but no additional loss of motion (LOM) on repetitive use.   There was no evidence of inflammatory arthritis or joint ankylosis.  X-ray examination of the right wrist was interpreted as unremarkable.  The examiner offered a diagnosis of post-traumatic tendinitis of the right wrist.  The right wrist condition was described as having significant effects on the Veteran's occupation as a sheet metal worker due to decreased strength and pain which increased with use of the hands.  This disability also had moderate effects on activities such as chores, recreation and traveling, and mild effects on feeding, bathing, dressing and grooming.  

By means of a rating decision dated August 2008, the RO granted service connection for residuals of right wrist fracture and assigned an initial 10 percent rating under DC 5299-5212, which represented "malunion of the radius with bad alignment."

In an application for SSA disability benefits filed in October 2008, the Veteran described arthritis in both hands which caused swelling and made it difficult for him to use tools.

In statements received in November 2008, the Veteran described a dull, aching right wrist pain which was present 90 percent of the time and slowed him down with work-related activities.

On VA joints examination in July 2010, the Veteran described pain, swelling and tenderness along the lateral aspect of his right wrist with use.  He had a poor response when treating with Excedrin.  He endorsed additional symptoms of deformity, give-way, instability, pain, stiffness, weakness, incoordination and decreased speed of joint motion.  He described right thumb numbness for the past few weeks, and inflammation symptoms of warmth, redness, swelling and tenderness.  He had moderate weekly flare-ups which lasted 1 to days in duration precipitated by any kind of movement, use of tools and repetitive motions.  At these times, the Veteran described not being able to do much of anything due to pain.  The Veteran denied dislocation, subluxation, locking or effusions.  Examination was significant for crepitus, deformity, tenderness and weakness of the right wrist.  He had right dorsiflexion from 0 to 35 degrees, palmar deviation from 0 to 60 degrees, radial deviation from 0 to 10 degrees and ulnar deviation from 0 to 20 degrees.  There was objective evidence of pain with active motion and repetitive motion, but there were no additional limitations after repetitive testing.  There was no joint ankylosis.  There was right hand grip strength of 50 pounds compared to 55 pounds on the left.  An x-ray examination was interpreted as unremarkable.  The examiner diagnosed post-traumatic tendinitis of the right wrist which caused decreased mobility, decreased manual dexterity, problems with lifting and carrying, difficulty reaching, decreased strength and upper extremity pain.  The effects on his usual activities of daily living were moderate for chores, recreation and driving, and mild for activities such as feeding, bathing, dressing, toileting and grooming.  The examiner also commented that the right wrist disability would prevent an occupation requiring use of tools, and that the wrist pain would interfere with an occupation requiring writing.

At his hearing in October 2012, the Veteran testified to right wrist pain and swelling with use.  At times, he had morning stiffness and difficulty moving his right wrist.  He described a weakened hand grip which caused him to drop items.  

Here, the Veteran's right wrist disability has been manifested by painful motion with limitation of motion as demonstrated on VA examinations in June 2008 and July 2010.  The currently assigned 10 percent rating represents the maximum available rating for limitation of motion under DC 5215 which, in the opinion of the Board, is the most appropriate diagnostic code applicable to the facts of this case.

The Board is cognizant of the Veteran's report of functional limitations with use but must hold, as a matter of law, that those functional complaints are contemplated by the maximum allowable rating for motion loss.  Spencer v. West, 13 Vet. App. 376, 382 (2000) (holding that, as a matter of law, functional impairment on use cannot be considered as the basis for a higher rating when the maximum available rating has been assigned under DC 5215).  Thus, there is no legal basis to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45.

The only available schedular basis for a rating greater than 10 percent requires ankylosis.  38 C.F.R. § 4.71a, DC 5214.  Ankylosis is immobility and consolidation of a joint due to disease, injury or surgical procedure.  Shipwash v. Brown, 8 Vet. App. 218, 221 (1995).  Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996).

Here, the Veteran's VA examinations in June 2008 and July 2010 showed that the Veteran had active motion in dorsiflexion, palmar deviation, radial deviation and ulnar deviation.  His x-ray examinations were interpreted as unremarkable.  The Veteran himself does not allege ankylosis.  To the extent that his allegations can be construed as alleging ankylosis, the Board places greater probative weight to the clinical findings of the VA examiners who have greater expertise and training than the Veteran in evaluating orthopedic disorders.  

As indicated above, the Board finds that the criteria of DC 5212 are not applicable as the Veteran has never demonstrated fracture of the radius.  Even assuming this diagnostic criteria applied, there is no lay or medical evidence of nonunion of the upper half of radius, or nonunion of the lower half of radius with false movement, loss of bone substance and/or marked deformity.  As such, as higher rating would not be warranted under DC 5212.  

Finally, the Board observes that the Veteran has not manifested ankylosis for any time during the appeal period.  As such, there is no evidentiary basis for consideration of a "staged" rating based on the facts found. 

In sum, the Board finds that the Veteran does not meet the criteria for a rating greater than 10 percent for his right wrist disability for any time during the appeal period.  There is no doubt of material fact to be resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b).  The claim, therefore, must be denied.

D.  Hearing loss

The Veteran is currently assigned a noncompensable rating for hearing loss under DC 6100.  The basis for evaluating defective hearing is the impairment of auditory acuity as measured by puretone threshold averages within the range of 1000 to 4000 Hertz and speech discrimination using the Maryland CNC word recognition test.  38 C.F.R. § 4.85.  Puretone threshold averages are derived by dividing the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz by four.  Id.  The puretone threshold averages and the Maryland CNC test scores are given a numeric designation which is then used to determine the current level of disability based upon a pre-designated schedule.  See Tables VI and VII in 38 C.F.R. § 4.85.  Under these criteria, the assignment of a disability rating is a "mechanical" process of comparing the audiometric evaluation to the numeric designations in the rating schedule.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993). 

Historically, the Veteran's service treatment records (STRs) document an episode of acoustic trauma due to firing a gun which resulted in diminished hearing, left greater than right.  Post-service, the Veteran was diagnosed with decreased hearing and tinnitus by a private examiner in 1992.  In September 2001, the Veteran was diagnosed with sensorineural hearing loss in the VA clinic setting.

In August 2007, the Veteran filed a service connection claim for ear ringing.  A November 2007 VA audiology consultation diagnosed moderately severe sensorineural (SNHL) hearing loss.  The Veteran reported poor hearing and tinnitus.  Notably, the Word Recognition Testing was conducted in the NU-6 (Northeastern University) word format which is not valid for VA rating purposes.  The Veteran was fitted for hearing aids.

A November 2007 statement from the Veteran's spouse described the Veteran as having hearing difficulty due to tinnitus.  She also described frustration with having to repeat conversations.

A January 2008 VA clinic record shows that the Veteran was prescribed Micro-tech canal hearing aids.

On VA audiology examination in June 2008, the Veteran described constant tinnitus, which seemed louder in quiet environments, which interfered with his hearing.  He had to face a speaker to understand speech.  Audiometric examination demonstrated right ear puretone thresholds of 40, 40, 50 and 55 decibels at 1000, 2000, 3000 and 4000 Hertz, respectively.  His left ear showed puretone thresholds of 40, 40, 65 and 65 decibels at 1000, 2000, 3000 and 4000 Hertz, respectively.  He had speech discrimination scores of 94 percent bilaterally. 

In statements received in November 2008, the Veteran described frustration by family members and friends with his inability to hear speech.  His right ear hearing seemed worse than the left.

By means of a rating decision dated January 2009, the RO awarded service connection for hearing loss and assigned a noncompensable rating effective September 22, 2008.

On VA audiology examination in July 2010, audiometric examination demonstrated right ear puretone thresholds of 45, 45, 70 and 70 decibels at 1000, 2000, 3000 and 4000 Hertz, respectively.  The Veteran's left ear showed puretone thresholds of 40, 50, 55 and 60 decibels at 1000, 2000, 3000 and 4000 Hertz, respectively.  He had speech discrimination scores of 92 percent in the right ear and 96 percent in the left ear.  The examiner commented that the Veteran's hearing loss had no significant effective on occupation or activities of daily living.

At his hearing in October 2012, the Veteran generally described a worsening of hearing in the last couple of years.  At times, he did not hear the phone ringing or his wife speaking to him.

The findings from the June 2008 examination show an average puretone threshold of 46 decibels with a word recognition score of 94 percent in the right ear.  When applied to the rating criteria, the Veteran exhibits Level I right ear hearing acuity per VA standards.  The Veteran had an average puretone threshold of 53 decibels with a word recognition score of 94 percent in the left ear.  This represents Level I left ear hearing acuity per VA standards.  Therefore, under Table VII, the Veteran is not entitled to a compensable rating under DC 6100.

The findings from the July 2010 examination show an average puretone threshold of 58 decibels with a word recognition score of 92 percent in the right ear.  When applied to the rating criteria, the Veteran exhibits Level II right ear hearing acuity per VA standards.  The Veteran had an average puretone threshold of 51 decibels with a word recognition score of 96 percent in the left ear.  This also represents Level I left ear hearing acuity per VA standards.  Therefore, under Table VII, the Veteran is not entitled to a compensable rating under DC 6100.

For both examinations, the Veteran did not manifest puretone thresholds of 55 decibels or more in each of the specified frequencies (1000, 2000, 3000 and 4000 Hertz) in either ear.  See 38 C.F.R. § 4.86(a).  Puretone thresholds for both ears were also less than 70 decibels at 2000 Hertz.  See 38 C.F.R. § 4.86(b).  As such, an exceptional pattern of hearing impairment is not shown. 

Furthermore, there was no certification that speech discrimination scores were not appropriate in this case.  As such, there is no basis for rating this case under the alternate criteria of 38 C.F.R. § 4.85, Table VIA. 

Thus, for the entire appeal period, the Veteran's bilateral hearing loss has been manifested by no worse than Level II auditory acuity in the right ear and Level I auditory acuity in the left ear.

To the extent that the Veteran and his spouse contend that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran and his spouse, while competent to report symptoms such as an inability to understand noise and speech with the presence of background noise, are not competent to report that his hearing acuity is of sufficient severity to warrant a compensable evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which they are not been shown to have.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

Despite the foregoing, the Board acknowledges the lay reports of an inability to understand noise and speech.  Even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a compensable rating are not met.  See Lendenmann, supra (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). 

The Board further observes that there is no indication that there has been a material change in the hearing loss disability during the appeal period.  As such, there is no evidentiary basis for consideration of a "staged" rating based on the facts found. 

The Board notes that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  See Martinak, supra.  In this case, the VA audiologist recorded the Veteran's description of the effects of his hearing loss on his occupational functioning and daily activities.  The Veteran and his spouse have reported his difficulty understanding conversation.  The Board finds that such functional impairment, in addition to the Veteran's other reports, has been appropriately considered but the overall evidence, as previously discussed, fails to support assignment of an initial compensable evaluation. 

E.  Other considerations

The Board has also contemplated whether the case should be referred for extra-schedular consideration.  In this regard, to accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1).

The provisions of 38 C.F.R. § 3.321(b) state as follows: 

Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities.  The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  Id.

If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter 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.

VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule.  See VAOPGCPREC 6-96 (Aug. 16, 1996).

In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability.  The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. 

The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance.  However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

"Because the VA disability rating schedule is designed to consider the disabling effect of disabilities separately, no single DC provision will adequately assess the variety of symptoms involved with multiple service-connected disabilities."  Johnson v. Shinseki, 26 Vet. App. 237 (2013) (en banc).  Thus, as to the question of "whether [38 C.F.R.] § 3.321(b)(1) requires VA to consider multiple service-connected disabilities on a collective basis" the Court held that it did not.  Id. (noting that a concurring opinion in Brambley v. Principi, 17 Vet. App. 20, 27 (2003) that there should have been a determination of "whether the appellant's service-connected disabilities as a whole [sic] entitled [a Veteran] to [an extraschedular rating] under § 3.321(b)(1)" had never been adopted by the Court and concurring opinions are not binding on the Court" (citing Maryland v. Wilson, 519 U.S. 408, 412-13).  Stated in other terms, an extraschedular rating may not be assigned for the cumulative impact of the service-connected disabilities herein at issue.

The Board is aware of the Veteran's complaints as to the effects of his service-connected PTSD, right wrist disability and hearing loss have had on his activities of work and daily living.  In the Board's opinion, all aspects of these disabilities are adequately encompassed in the assigned schedular ratings. 

As instructed in Mauerhan, the Board has considered all of the Veteran's reported psychiatric symptomatology in the assigned schedular ratings.  The Board has also considered whether higher ratings still are warranted based upon the frequency, duration and severity of symptoms, but the criteria for higher ratings are not met.

The evaluation of the right wrist disability has included consideration of clinical findings such as limitation of motion and ankylosis.  The Veteran reports functional limitations of deformity, give-way, instability, pain, stiffness, weakness, incoordination, and decreased speed of joint motion which are credible and consistent with the medical findings.  However, the Veteran's functional complaints are contemplated with the maximum rating for limitation of motion assigned.

The Board finds also that the Rating Schedule measures and contemplates all aspects of the Veteran's hearing loss disability.  As explained in the proposed rule for the current version of DC 6100, the criteria of DC 6100 were revised in 1987 with the goal of recognizing the impact of hearing loss in higher frequencies, and to provide a more accurate picture of true hearing impairment.  See 52 Fed. Reg. 17607 (May 11, 1987).  As a result, VA changed its testing methods and, in conjunction with the Department of Medicine and Surgery, developed amendments to 38 C.F.R. § 4.85, 4.86a, 4.87a and Tables VI and VII.  In particular, puretone averaging was to be accomplished using tone bursts at 1000, 2000, 3000 and 4000 Hertz, and speech recognition was to be measured using the Maryland CNC word lists which contained words with sounds in the 3000 and 4000 Hertz range.

Overall, the new schedule was intended to evaluate hearing loss based on a combination of puretone averages and speech discrimination, which was thought to provide for a more accurate representation of actual hearing impairment by recognizing that individuals with slight to moderate decibel loss as determined by puretone averaging may have significant impairment of speech and vice versa. 

Additionally, the rating schedule was revised to accommodate language difficulties and other factors which produced inconsistent speech audiometry scores, and to recognize exceptional patterns of hearing impairment.  Notably, VA determined that "Table VII was developed during months of consultations with our Department of Medicine and represents the best judgment of experts in this field." 

Based upon the stated factors and considerations undertaken by VA and medical experts in developing the current criteria of DC 6100, the Board finds that the schedular rating currently assigned reasonably describes the Veteran's disability level and symptomatology.  The Veteran's description of an inability to hear and discriminate speech has been measured according to puretone averages and speech discrimination.  The Board further observes that VA examinations are conducted without use of hearing aids, see 38 C.F.R. § 4.85, and that the use of hearing aids would, if anything, provide better hearing than demonstrated on audiometric examination.  See 52 Fed. Reg. 44117 (Nov. 18, 1987).

For all the disabilities considered, VA's Schedule of Ratings provides criteria for higher schedular ratings but the Veteran has not met, or more closely approximated, the criteria for a higher schedular rating.  In short, the Board finds that the assigned schedular evaluations for PTSD, right wrist disability and bilateral hearing loss are adequate.  As such, there is no basis for extraschedular referral in this case.  See Thun, 22 Vet. App. at 114-15.

In Rice, supra, the Court held that the issue of entitlement to TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the issue for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.

As addressed above, the RO has awarded TDIU effective July 21, 2010 which does not extend to the date of formal claim.  The issue of entitlement to TDIU prior to July 21, 2010 is addressed in the REMAND following this decision.


ORDER

An initial rating in excess of 50 percent for PTSD for the time period from September 22, 2008 to February 16, 2009 is denied.

An initial 70 percent rating, but no higher, for PTSD effective February 16, 2009 is granted, subject to the laws and regulations governing the payment of monetary awards.  

An initial rating in excess of 10 percent for residuals of right (major) wrist fracture is denied.

An initial compensable rating for service-connected bilateral hearing loss is denied.


REMAND

At the outset, the Board notes that it must consider all theories reasonably raised by a claimant in a service connection claim.  Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) (holding that all theories pertaining to the same benefit for the same disability constitute the same claim).  

Briefly summarized, the Veteran has been service-connected for asbestosis, but has been denied service connection for a co-existing pulmonary disorder of COPD.  A June 2012 VA examination report reflects that pulmonary function test (PFT) results characteristic of asbestosis include:

* reduced lung volumes, particularly the vital capacity and total lung capacity;
* diminished single breath DLCO;
* decreased pulmonary compliance;
* absence of airflow obstruction by spirometry (normal ratio of the forced expiratory volume in one second to forced vital capacity).

The examination report also notes that the earliest physiologic abnormalities detected in asbestos-exposed patients involve reductions in DLCO and pulmonary compliance in the presence of exertional hypoxemia.  In more advance disease, hypoxemia could be at rest.  It was also noted that airways obstruction generally reflected concomitant exposure to cigarette smoke, but rarely occurred in the absence of tobacco exposure.

A private July 2010 medical statement opines that a substantial factor in the Veteran's current pulmonary problems could be attributed to his exposure to asbestos as a diesel mechanic.  At the hearing in October 2012, the Veteran's attorney argued that the Veteran's service-connected asbestosis has caused or aggravated his COPD.  See 38 C.F.R. § 3.310 (service connection may be granted for disability proximately due to service-connected disability).  

Given the secondary service connection theory recently raised, and the very fine distinctions between pulmonary dysfunction caused by asbestosis as opposed to COPD, the Board finds that further medical opinion is necessary to determine whether the Veteran's service-connected asbestosis has caused or aggravated his COPD.  38 U.S.C.A. § 5103A(d).

The Board also finds that medical opinion is necessary to decide the service connection claims for peripheral edema, a heart condition, hypertension and a skin disorder as the evidence and argument suggests that such disorders may be proximately due to the Veteran's pulmonary disorder.

The Veteran asserts that he manifests a heart disorder which is either attributable to herbicide exposure and/or proximately due to service-connected asbestosis.  He has also attributed his atrial arrhythmia to taking Theophylline used to treat his pulmonary disorder.  See St. Joseph's Hospital medical record dated June 2010.  He also asserts that his peripheral edema and hypertension may be proximately due to his service-connected asbestosis.  His skin disorder has been diagnosed as stasis dermatitis.  See VA examination report dated June 2008.

The record reflects that, at one point in the appeal, the Veteran was diagnosed with cor pulmonale.  See Private clinic record dated March 2007.  This heart condition is recognized by VA as potentially being caused by both COPD and asbestosis.  See 38 C.F.R. § 4.97, DCs 6604, 6833.  A January 2007 PFT was interpreted as showing severe airway obstruction as well as severely reduced diffusing capacity.  It was noted that the overall pattern of DLCO, DL/VA and VA/TLC was consistent with pulmonary vascular disease. 

The Board further notes that, effective August 31, 2010, VA amended 38 C.F.R. § 3.309(e) to add ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents.  The term "ischemic heart disease" is noted to include, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina.  These amendments are applicable to claims received by VA on or after August 31, 2010 and to claims pending before VA on that date.  Accordingly, the amendments apply to the Veteran's claim.

The Veteran served in Vietnam during the Vietnam era.  However, a VA examiner in March 2011 found that the Veteran does not manifest ischemic heart disease.

At the hearing in October 2012, the Veteran's attorney argued that the Veteran's peripheral edema, hypertension and/or skin disorder may be complications of his pulmonary disorders.  The Board also finds that medical opinion should be obtained on these service connection theories.  38 U.S.C.A. § 5103A(d).

Additionally, as relevant to the Veteran's service connection claims, he should be requested to identify any pertinent treatment records relating to such claims.  Thereafter, all identified records should be obtained.  

Finally, as relevant to the issue of entitlement to a TDIU prior to July 21, 2010, the Board finds that such issue should be reconsidered by the RO in light of the Board's award of a 70 percent rating for PTSD as of February 16, 2009.

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran and his attorney notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding the criteria for establishing service connection on a secondary basis under 38 C.F.R. § 3.310 for his claims for service connection for COPD, peripheral edema, a heart disorder, hypertension, and a skin disorder.  

2.  Additionally, request the Veteran to identify any pertinent treatment records relating to his claims of service connection for COPD, peripheral edema, a heart condition, hypertension and a skin disorder.  Thereafter, all identified records should be obtained.  All reasonable attempts should be made to obtain such records.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. 
§ 3.159(e). 

3.  After all outstanding records have been associated with the claims file, the Veteran should also be afforded appropriate VA examination(s) to determine the current nature and etiology of his claimed COPD, peripheral edema, heart condition, hypertension and skin disorder.  The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner.  Any indicated evaluations, studies, and tests should be conducted.

COPD

The examiner should render an opinion as to whether it is at least as likely as not that the Veteran's COPD had its onset the Veteran's active duty service or is otherwise related to such service, to include his exposure to asbestos and/or herbicides during active service.  

Alternatively, the examiner should render an opinion as to whether it is at least as likely as not that the Veteran's COPD has been caused OR aggravated beyond the normal progress of the disorder by service-connected asbestosis.

The rationale for any opinion offered should be provided.

Peripheral edema

The examiner should clarify the cause for the Veteran's peripheral edema, and render an opinion as to whether it is at least as likely as not that such disability had its onset the Veteran's active duty service or is otherwise related to such service, to include his exposure to asbestos and/or herbicides during active service.  

Alternatively, render an opinion as to whether it is at least as likely as not that such disorder has been caused OR aggravated beyond the normal progress of the disorder by service-connected asbestosis.

Heart condition

The examiner should identify all current heart conditions present, and render an opinion as to whether it is at least as likely as not that such disorder(s) had its onset the Veteran's active duty service or is otherwise related to such service, to include his exposure to asbestos and/or herbicides during active service.  

Alternatively, render an opinion as to whether it is at least as likely as not that such disorder(s) has/have been caused OR aggravated beyond the normal progress of the disorder(s) by service-connected asbestosis, to include medications used to treated asbestosis.  In providing this opinion, the examiner's attention is directed to a private clinic record dated March 2007 reflecting a diagnosis of cor pulmonale as well as a June 2010 St. Joseph's Hospital medical record wherein the Veteran's prescription of Theophylline may have been attributed to causing atrial arrhythmia.

Hypertension

The examiner should render an opinion as to whether it is at least as likely as not that the Veteran's hypertension had its onset the Veteran's active duty service or is otherwise related to such service, to include his exposure to asbestos and/or herbicides during active service.  

Alternatively, render an opinion as to whether it is at least as likely as not that the Veteran's hypertension has been caused OR aggravated beyond the normal progress of the disorder(s) by service-connected asbestosis.

The rationale for any opinion offered should be provided.




Skin disorder

The examiner should request the Veteran to identify the skin disorder(s) being claimed, to identify all current skin conditions present, and render an opinion as to whether it is at least as likely as not that such disorder(s) had its onset the Veteran's active duty service or is otherwise related to such service, to include his exposure to asbestos and/or herbicides during active service.  

Alternatively, render an opinion as to whether it is at least as likely as not that such disorder(s) (including stasis dermatitis noted on the June 2008 VA examination) has/have been caused OR aggravated beyond the normal progress of the disorder(s) by service-connected asbestosis.

The rationale for any opinion offered should be provided.

4.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  The service connection claims should be considered on a direct basis, secondary basis due to service-connected disability, and a presumptive basis as due to herbicide exposure.  The RO should also reconsider the issue of entitlement to a TDIU prior to July 21, 2010, in light of the Board's award of a 70 percent rating for PTSD as of February 16, 2009.  If any claim remains denied, the Veteran and his attorney should be issued a SSOC.  An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).



______________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs