Citation Nr: 1334663 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 05-40 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from May 10, 2007. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2004 and October 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In November 2004, the RO denied service connection for tinnitus. In October 2005, the RO granted service connection for PTSD and assigned a 30 percent disability rating effective August 13, 2004. The Veteran appealed those decisions and the case was referred to the Board for appellate review. The case was previously before the Board in December 2009, on which occasion the Board remanded the Veteran's claim of entitlement to service connection for tinnitus for further development. The Board also denied the Veteran's claim of entitlement to increased ratings for his service-connected PTSD. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (Court). In August 2010 the Court issued an order granting the parties' Joint Motion for Remand (Joint Motion) to vacate the Board's decision, and remanded the case back to the Board for compliance with the Joint Motion. The Board then issued another decision in August 2011 which, in pertinent part, denied service connection for tinnitus, but granted a 70 percent rating for PTSD effective from May 10, 2007. The Veteran again appealed this decision to the Court. In May 2013, the Court vacated the Board's decision with respect to those issues and remanded them back to the Board for further adjudication consistent with its memorandum decision. A portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Because the current appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record. While the Veteran has not separately appealed the issue of entitlement to a TDIU due to service-connected disability, the issue has been raised on a derivative basis pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence indicates that the Veteran may be unemployable due to his service-connected PTSD. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court essentially stated that a request for total disability rating, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Id. at 453-54. In this case, however, the Veteran has already been awarded a TDIU effective from August 25, 2011. Prior to that date, however, the issue of entitlement to a TDIU is still raised on a derivative basis as part of the Veteran's initial rating claim for PTSD, as the Veteran reportedly stopped working full-time in April 2010 due to problems with his PTSD. As the Court of Appeals for Veterans Claims (Court) recently noted in Locklear v. Shinseki, 24 Vet. App. 311 (2011), Rice states that a request for a TDIU is 'not a separate claim for benefits,' and is best analyzed as a request for an appropriate disability rating, either 'as part of the initial adjudication of a claim, or ... as part of a claim for increased compensation.' Rice, 22 Vet. App. at 453-54. However, the Court in Locklear elaborated that in Rice the Secretary did not separate the adjudication of an initial disability rating from the adjudication of TDIU. Conversely, in Locklear, the Secretary specifically separated the adjudication of the schedular disability rating from the adjudication of TDIU. Bifurcation of a claim generally is within the Secretary's discretion. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (en banc) (holding that it is permissible for the Secretary to bifurcate a request for benefits on the basis of direct service connection from the request on the basis of presumptive service connection); Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions); Holland v. Brown, 6 Vet. App. 443, 447 (1994) (holding that 'it was not inappropriate' for the Board to refer a TDIU claim to the RO for further adjudication and still decide an increased-ratings claim). In fact, Rice explicitly noted the possibility that the separation of TDIU would provide distinguished circumstances, ('This is not to say that, just because TDIU is raised in the context of an initial adjudication of a claim, in an appropriate case, the Court could not review a schedular rating assigned by the Board even though the Board also remanded or referred an issue as to entitlement to TDIU. '). Locklear v. Shinseki, , 24 Vet. App. 311 (2011). The issue of entitlement to a TDIU prior to August 25, 2011 has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT From May 10, 2007, the Veteran's PTSD is not manifested by gross impairment of thought process or communication, a persistent danger of hurting self or others, disorientation of time or place, grossly inappropriate behavior, or memory loss for basic concepts such as names of family members or his own occupation. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD from May 10, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Moreover, the RO properly issued a January 2006 statement of the case (SOC) which contained, in part, the pertinent criteria for establishing a higher rating. See 38 U.S.C.A. § 7105(d)(1). VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dingess. The Veteran was allowed a meaningful opportunity to participate in the adjudication of the claim. Even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is no prejudice to the claimant. See Overton v. Nicholson, 20 Vet. App. 427 (2006). B. Duty to Assist This additional duty includes assistance in obtaining potentially relevant records, such as service treatment records and post-service VA and private medical evaluation and treatment records, as well as the provision of an examination - including for a medical opinion - when necessary to make a decision on the claim. Notably, the Court vacated the Board's prior decision and remanded the claim for an increased rating for PTSD to obtain outstanding VA treatment records. Here, the Veteran's service treatment records, VA treatment records, private treatment records, and lay statements have been associated with the claims file. These include the outstanding VA treatment records identified in the Court's March 2013 memorandum decision, which were recently associated with the Virtual VA file. Therefore, because there has already been substantial compliance with the Court's instructions, an additional remand by the Board is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand not required under Stegall where there was substantial compliance with remand directives). The Veteran was also afforded VA examinations. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the Veteran's PTSD. VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claim. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Increased Rating A. Applicable Law Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation 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 (2013). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Veteran is currently assigned a 70 percent rating for PTSD under Diagnostic Code 9411. A 70 percent disability rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A higher 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the Veteran's own occupation or name. Id. The record also contains Global Assessment of Functioning (GAF) scores. As described in the Fourth Edition of the American Psychiatric Association's DIAGNOSTIC AND STASTICAL MANUAL FOR MENTAL DISORDERS (DSM-IV), GAF scores range from 1 to 100, depending on the level of a person's occupational and social functioning. The GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). DSM-IV at 46-47. GAF scores from 61 to 70 reflect 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 generally functioning pretty well, with some meaningful interpersonal relationships. Id. GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Id. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). Id. GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which 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., a depressed patient who avoids friends, neglects family, and is unable to do work). Id. B. Evidence The Veteran underwent a VA examination in May 2007. He reported that he was currently employed with a car dealership. He indicated that his current symptoms include sleep disturbances, nightmares and irritability. On mental status examination, the examiner noted that the Veteran's thought processes were logical, coherent and relevant. The examiner stated that the Veteran was articulate, verbal, intelligent, well-dressed and well-groomed, with good social skills. He was oriented to time, place, person and situation. His affect was normal and his reasoning was good. There was no evidence of psychomotor slowing or agitation. Verbal comprehension and concentration were both normal. The Veteran complained of poor short-term memory. A review of psychological symptoms resulted in endorsement of anxiety, depression, insomnia, crying spells, anhedonia, gastrointestinal problems and racing thoughts. The Veteran also reported anger control problems and vague auditory hallucinations. He denied ever being suicidal or homicidal. The examiner noted that the Veteran's problem behaviors are specifically due to his irritability and intolerance of others, and that these are secondary to his service-connected PTSD. With regard to occupational functioning, the examiner noted that the Veteran was placed in a position of reduced responsibility. With regard to social functioning, the examiner noted that the Veteran is close to his common law wife and children, but that he has restricted his relationships and is no longer interested in relating to the general public. A GAF score of 50 was assigned. The examiner concluded by stating that the Veteran's mood was very unstable and that he showed borderline psychotic tendencies, including anger and intolerance of others. VA treatment records dated August 2007 show the Veteran reported being depressed and stressed over his job at the car dealership. He was not certain he could keep working there. He still had occasional nightmares about Vietnam. On examination, the Veteran was appropriately dressed and alert. His speech was logical. His mood was euthymic and his affect was congruent. Insight and judgment were good. There was no indication of suicidal or homicidal ideation. The examiner stated that the Veteran was doing "fairly well" overall. A March 2008 suicide risk assessment was negative. In September 2008, the Veteran reported increased stress on the job, but stated he was able to walk away and avoid "exploding." His mood was anxious and his affect was irritable. Records dated October 2008 show the Veteran continued to find his customer service job at a car dealership to be stressful. He dealt with the stress by riding his motorcycle and spending time at his lake house. On examination, his appearance was normal and his mood was good. Speech and psychomotor activity were normal. The Veteran denied any hallucinations or suicidal or homicidal ideation. In December 2009, the Veteran reported that he was now working in the parts department of his car dealership. Objective findings were unchanged from October 2008. In April 2010, the Veteran reported some concerns regarding his memory. In August 2010, the Veteran reported that he had retired from his job and felt better for it. Records dated November 2010 and December 2010 show the Veteran reported being depressed at times, but denied any suicidal ideation. Sometimes he was so depressed that he had no motivation to get out of bed. These episodes would last about a week. He had nightmares about 3 times per week. He kept busy doing home repairs, and spent time at a lake house. He had a good relationship with his wife and enjoyed spending time with his dog. On examination, the Veteran was appropriately groomed and dressed. His mood was euthymic and his affect was full. There was no suicidal or homicidal ideation, and no psychosis. Insight and judgment were good. In February 2011, the Veteran reported returning to work on a part-time basis. He continued to deny any suicidal or homicidal ideation. Speech and appearance were normal. In May 2011, the Veteran reported that he continued to work on remodeling his house. His anxiety and anger had decreased since he was no longer working with the public. A May 2011 statement from a co-worker, who was a member of the American Legion noted that the Veteran had difficulty focusing. He would get very excitable or angry and leave without returning for several days. He would eventually return, but the pattern would repeat. During a July 2011 depression screen, the Veteran denied any depression, hopelessness, or diminished interest or pleasure in doing things. The Veteran submitted a statement from a coworker dated August 2011. He noted that the Veteran had difficulty concentrating on what he was supposed to be doing. He also got very agitated and frustrated. In April 2009, it was agreed upon that he should leave the job. Although he returned in June 2011 on a part-time basis, he was still unable to perform at a satisfactory level. Records dated September 2011 and March 2012 show the Veteran was continuing with his house remodeling. He also visited some family in New York. On examination, the Veteran was appropriately groomed and dressed. His mood was euthymic and his affect was full. There was no suicidal or homicidal ideation, and no psychosis. Insight and judgment were good. The Veteran's supervisor submitted a statement in April 2012 noting the Veteran's work history since 1983. It was noted that he had quit and then been rehired a few times with less stressful responsibilities. He worked full-time until April 2010 and then came back to work temporarily from June 22, 2011 until August 11, 2011. Lay statements dated May 2012 from the Veteran's coworker reported that the Veteran would become easily stressed when dealing with coworkers, and would sometimes leave work for a couple of hours as a result. When dealing with employees, he was very short and turned "red-faced." He also had difficulty concentrating and focusing, and sometimes forgot that he had completed certain tasks. A statement from his common-law wife noted that the Veteran had difficulty sleeping. He had trouble concentrating and staying focused on tasks or conversations. He self-medicated with beer and marijuana. The Veteran underwent another VA examination in June 2012. The examiner diagnosed the Veteran with PTSD and alcohol abuse, and stated that she could not differentiate the symptoms associated with each condition without speculating. The Veteran reported having a good relationship with his wife and children, but avoided being around "a bunch of people" as this made him "antsy." Recreational activity included remodeling an old house, which included carpentry and plumbing. He used to enjoy working, but experienced tension and depression all the time. With respect to employment, he reported that he used to work at a car dealership, but that he was unable to function, even despite stepping down to progressively less responsible positions. He currently experienced symptoms of sleep disturbances, nightmares and flashbacks, and anxiety. He rated his depression as 5/10 and anxiety as 9/10 in severity. He denied any legal issues or assaultive behavior. He drank regularly, up to a 6-pack per day, and occasionally used marijuana. On examination, there was no impairment of thought process or communication, and speech was normal. Grooming and hygiene were appropriate. Mood was "down" and affect was appropriate. The Veteran was fully oriented. He reported difficulty with concentrating, and described hearing the voices of men wounded or killed in Vietnam. There was no obsessive or ritualistic behavior. No impairment of impulse control was present. He reported having fleeting thoughts of suicide "a couple weeks ago" but denied any current plan or intent. The examiner documented symptoms of depressed mood, anxiety, sleep impairment, mild memory loss, disturbances of motivation and mood, persistent delusions or hallucinations, difficulty in establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances. She noted that PTSD resulted in occupational and social impairment with deficiencies in most areas. Occupational functioning was severely impaired. However, his PTSD was not consistent with total occupational and social impairment. The Veteran's GAF score was 50. C. Analysis Based on the evidence of record, a rating in excess of 70 percent is not warranted. Effective May 10, 2007, the Veteran's PTSD is manifested by sleep difficulties, irritability, anxiety, depression, anger control problems, and vague auditory hallucinations. He also had complaints of poor short term memory. While he was working, the examiner noted that he was in a position of reduced responsibility at work. He also had restricted relationships with his wife and children and was no longer interested in relating to the regular public. The May 2007 examiner specifically stated that the Veteran's condition had worsened over time and was significantly worse than evaluated in January 2006. Moreover, the examiner found that the Veteran's mood was very unstable and that he showed borderline psychotic tendencies, including anger and intolerance of others. A GAF score of 50 was assigned. The May 2011 letter from one of the Veteran's coworkers also noted that he had been concerned about the Veteran for some time and has observed the Veteran having difficulties focusing, and that he got excitable, angry or depressed. Another co-worker noted in August 2011 that the Veteran was found to have difficulty concentrating on what he was doing and got very agitated and frustrated. It was further noted that the Veteran eventually had to leave his job; he came back part-time but continued to be unable to perform at a satisfactory level. Based on the evidence of record the Board finds that a rating of 70 percent is warranted for that time period. The evidence of record, specifically the May 2007 VA examination report, shows a substantial worsening of the Veteran's PTSD symptoms, resulting in occupational and social impairment with reduced reliability and productivity. Symptomatology from that period includes a flattened affect, impaired judgment, impaired short-term memory and difficulty establishing and maintaining working and social relationships. While these symptoms alone would be more consistent with a 50 percent rating, the Veteran also was found to have impaired impulse control, difficulty in adapting to stressful circumstances, and borderline psychotic tendencies. Moreover, the only GAF score of record for that time period was 50, which indicates serious symptoms. These ratings most closely approximate those symptoms contemplated by a 70 percent rating. However, the next higher 100 percent rating is not indicated. The Veteran stopped working full-time in April 2010 but was still able to maintain part-time employment through August 2011, though he still had problems with performance. He reported vague audio hallucinations, but these were not shown to be persistent. His thought processes were logical, coherent and relevant; his speech was normal; he was well-dressed and well-groomed, with good social skills; and he was oriented to time, place, person and situation. Furthermore, his affect was normal and his reasoning was good. While the Veteran arguably had total occupational employment especially considering that he stopped working full-time in April 2010 after having problems with his PTSD, the medical evidence does not in any way demonstrate total occupational and social impairment to warrant a 100 percent rating for PTSD. The most recent VA examination in June 2012 documented persistent delusions or hallucinations. However, there are no other findings that reflect an overall level of disability consistent with the maximum 100 percent rating. During the appeal period, the Veteran did not demonstrate gross impairment in thought process or communication, grossly inappropriate behavior, a persistent danger of hurting himself or others, an inability to perform activities of daily living, disorientation as to time or place, or memory loss for basic concepts such as his own occupation or name. The June 2012 examiner specifically stated that the Veteran's PTSD did not result in the total occupational and social impairment consistent with the 100 percent rating. Rather, his symptoms resulted in occupational and social impairment with deficiencies in most areas, which is consistent with the assigned 70 percent rating. While the Veteran's GAF scores of 50 reflect severe impairment, the symptoms associated with that score, such as suicidal ideation, are again factored into the assigned 70 percent rating. Additional symptoms that were documented, including suicidal ideation, borderline psychotic behavior, sleep impairment and nightmares, anxiety, depression, mild memory loss, and mood disturbances, are all explicitly contemplated by the assigned 70 percent rating. In adjudicating a claim the Board must assess the competence and credibility of the Veteran and other lay witnesses. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as anxiety and sleep impairment. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran and other lay witnesses to be credible in their reports of the symptoms he experiences. However, as with the medical evidence of record, their of his symptomatology describes ratings consistent with the assigned ratings. D. Extraschedular Consideration In evaluating the Veteran's claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As part of the evaluation for an extraschedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected conditions in considering if the Veteran is entitled to an extraschedular rating. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria found in the rating schedule for that condition shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. His symptoms, including suicidal ideation, depression, and sleep impairment, are all expressly contemplated by the rating schedule. The rating schedule also allows for a higher rating based upon additional symptoms which have not been demonstrated in this case. There is no indication that the Veteran's PTSD results in any symptoms that fall so far outside the rating schedule as to render it inadequate. ORDER A rating in excess of 70 percent for PTSD from May 10, 2007 is denied. REMAND In the Court's March 2013 memorandum decision, it specifically instructed the Board to obtain a new medical opinion addressing whether the Veteran has tinnitus that is related to his service. Therefore, the case is remanded for that reason. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination with an appropriate clinician. The purpose of the examination is to determine whether the Veteran has tinnitus that is related to his active service, to include the alleged noise exposure and acoustic trauma. The following considerations will govern the examination: a. The claims folder and a copy of this remand must be available to the examiner for review in conjunction with the examination. The examiner MUST take a complete history from the Veteran as to any pre-service, in-service and post-service noise exposure and acoustic trauma and the onset, nature and progression of the alleged ringing in the ears. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must state this, with a fully reasoned explanation. All appropriate tests and studies should be accomplished. b. The examiner is advised of the following: * The Veteran was exposed to combat during service, and his records reflect service as a combat engineer. Therefore, noise exposure in service is conceded. * Service treatment records include no complaints of or treatment for ringing in the ears. * There are post-service diagnoses of tinnitus of record. An August 2004 private opinion from Dr. A.M. primarily discusses hearing loss, but includes a description of the Veteran's account of experiencing ringing in his ears following exposure to an ammunition dump explosion. * VA treatment records dated November 2007 show the Veteran denied any complaints of tinnitus. * The Veteran is competent to report noise exposure and ringing in his ears, as both are capable of lay observation. c. After a review of the examination findings and the all other evidence of record, the examiner must answer the following question: Given the Veteran's competent assertion of in-service noise exposure and ringing in his ears, is the Veteran's tinnitus related to service, including any alleged noise exposure and/or acoustic trauma? An explanation must be provided for any opinion or conclusion expressed. 3. Review the examination report to ensure that it complies with these remand instructions. If it does not, return it to the examination for correction. 4. After completion of the above and any other development deemed necessary, the RO should review and readjudicate the claim on appeal. If any such action does not resolve the claim to the Veteran's satisfaction, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs