Citation Nr: 1337981 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-31 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an initial disability rating for service-connected posttraumatic stress disorder (PTSD), in excess of 30 percent prior to July 27, 2010, and in excess of 50 percent since July 27, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from October 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for PTSD and assigned a 30 percent rating, effective from June 29, 2009, and denied service connection for tinnitus. By February 2012 rating decision, the RO granted a 50 percent rating for PTSD, effective from July 27, 2010 (the date that the Veteran's VA Form 9 was received). The Veteran continued his appeal for higher ratings for PTSD, both prior to and effective from July 27, 2010. In August 2012, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing held at the RO. The transcript is of record. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his tinnitus is related to noise exposure incurred during his military service. 2. Effective prior to July 27, 2010, the Veteran's PTSD was manifested by no more than mild occupational and social impairment and symptoms such as sleep problems, nightmares, intrusive thoughts, and depression; however, the competent evidence of record did not reflect any speech problems, memory problems, panic attacks, or impairment of judgment or abstract thinking. 3. Effective from July 27, 2010, the Veteran's PTSD has manifested by no more than occupational and social impairment with reduced reliability and productivity due to such symptoms as depression, poor concentration, excessive anger, irritation, sleep disturbance, nightmares, guilt, nervousness, panic, impairment of memory, disturbances of motivation and mood; while he has had thoughts of suicide, he had no plan or intent, and difficulty in establishing and maintaining effective work and social relationships. CONCLUSIONS OF LAW 1. Giving the benefit of the doubt to the Veteran, his tinnitus was incurred during active service. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. Effective prior to July 27, 2010, the criteria for a rating in excess of 30 percent for PTSD were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 3. Effective from July 27, 2010, the criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the U.S. Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). As will be discussed in further detail below, the Board finds that evidence of record supports the grant of service connection for tinnitus. As this portion of the appeal is being granted in full, no discussion of VA's duty to notify and to assist the Veteran, with respect to this issue, is necessary. With respect to the claim for higher/increased ratings, the VCAA requirement is for generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed.Cir. 2009). Further, with regard to the claim for higher ratings for PTSD, the Board notes that the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in August 2009 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter. Since the appellate issue in this respect (entitlement to assignment of a higher initial rating) is a downstream issue from that of service connection (for which the August 2009 VCAA letter was duly sent), another VCAA notice is not required. VAOPGCPREC 8-2003. This appeal is from the initial rating assigned with the grant of service connection. The statutory scheme contemplates that once a decision awarding service connection, disability ratings, and effective dates has been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). The Veteran is exercising his right to appeal the rating assigned. In addition, the June 2010 statement of the case (SOC) properly provided him notice of the criteria for rating PTSD, including what the evidence showed, and why the current rating was assigned. The Veteran has had ample opportunity to respond and supplement the record, and, in addition, provided testimony in this matter in August 2012. He is not prejudiced by this process; notably, he does not allege that notice in this case was less than adequate or that he is prejudiced by any notice deficiency. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Goodwin v. Peake, 22 Vet. App. 128 (2008). The Board also notes that in the August 2009, the Veteran was advised of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. He has not demonstrated any error in VCAA notice, and, therefore, the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. Additionally, in August 2012, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO 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. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the August 2012 hearing, the undersigned Veterans Law Judge enumerated the issues on appeal, and information was also solicited regarding the current nature and severity of his PTSD, as well as any post-service treatment for his PTSD. Therefore, not only was the issue "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 evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained all identified and available service and post-service treatment records for the Veteran. Further, VA examinations were obtained in September 2009, January 2010, and February 2012, to assess the severity of the Veteran's PTSD. The Board finds that these VA examinations each included a review of the claims folder and a history obtained from the Veteran, and examination findings were reported, along with diagnoses and opinions, which were supported in the record. These three examination reports are therefore adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. 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); see also Quartuccio v. Principi, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection for Tinnitus Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is not listed under 38 C.F.R. § 3.309(a) as a chronic disease. Although 38 C.F.R. § 3.309(a) lists "Other organic diseases of the nervous system" as a chronic disease, and VA has established that sensorineural hearing loss is considered an organic disease of the nervous system, no such interpretation has been made with respect to tinnitus. See M21-1MR III.iv.4.B.12.a. Thus, the Veteran's tinnitus is not a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable with respect to that claim. Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Veteran contends he sustained tinnitus when he was exposed to excessive noise during his combat service in Vietnam. He also contends he has had ringing in his ears, at least intermittently, since service. Service treatment records (STRs) are negative for complaints, or findings, of tinnitus. However, the Veteran's DD Form 214 shows that his military occupational specialty (MOS) was "LT WPMNS INF", and his awards included a Purple Heart and a CIB (combat infantryman's badge). Further, the Veteran is certainly capable of providing a history of exposure to excessive noise during his combat service, and the Board has no reason to doubt his contentions in this regard. As there is no apparent dispute as to the Veteran's report of exposure to excessive noise during his combat service, acoustic trauma in service is essentially conceded. With regard to a current disability, the Board notes that the Veteran has been diagnosed with tinnitus. In addition, he is competent to report as to observable symptoms such as ringing in his ears, and tinnitus is the type of disorder associated with symptoms capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board therefore concludes that there is sufficient evidence of a current disability of tinnitus. The issue here is whether the Veteran's current tinnitus is related in any way to his exposure to excessive noise during his active service. After review of the evidence of record, both lay and medical, the Board notes that there is both unfavorable and favorable evidence regarding the question of whether the Veteran has tinnitus causally related to the period of active service. Additionally, at the September 2009 VA examination the examiner opined that the Veteran's tinnitus was not related to military service. On the one hand, the Veteran's service treatment records (STRs) are absent of any complaint, finding, or treatment for tinnitus, and the Veteran's ears and ear drums were clinically evaluated as normal at the time of his service separation examination in September 1969. On the other hand, the Veteran has reported noise exposure during service, and noise exposure is consistent with the circumstances, conditions, and hardships of his combat service. In his substantive appeal submitted in July 2010 and on the VA examination in January 2012, the Veteran reported that he had bilateral tinnitus since service. The Veteran had active service from October 1967 to October 1969; therefore, his report in the substantive appeal and at the January 2012 VA examination relates the onset of tinnitus symptomatology to his time in service. Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Moreover, there is no indication in the record that the Veteran's account of having had tinnitus symptomatology since service is not credible. With respect to the January 2013 VA opinion, the examiner, in response to the request for an opinion regarding the probable etiology of tinnitus, indicated he could not provide a medical opinion regarding the etiology of the Veteran's tinnitus without resorting to speculation. The Board notes that such a conclusion essentially amounts to a non-opinion and is basically of no probative value here. See Fagan v. Shinseki, 573 F. 3d 1282 (Fed Cir. 2009) (holding held that when an examiner is unable to come to an opinion such "non-opinion" is neither positive nor negative support for a claim of service connection and is, therefore, not probative evidence). Thus, while service treatment records do not show of any complaint, finding, or treatment for tinnitus in service, the records do show that the Veteran was exposed to loud combat noise during service. Further, the Veteran has competently asserted that he has experienced tinnitus symptomatology since service and there is no indication in the record that the account is not credible. Therefore, upon consideration of the foregoing, the Board finds that the evidence both for and against the material issue of whether the Veteran has had tinnitus symptomatology since active service is in relative equipoise. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 . III. Entitlement to Higher Initial Ratings for PTSD, Prior and Subsequent to July 27, 2010 1. Factual Background VA treatment records showed that in May 2009 the Veteran had a negative screen for depression. In late June 2009, he reported he had been relieving experiences of the Vietnam War. He had a nightmare he had been shot. He worked at a gravel pit and when overturning vegetation that had been covered with dirt, he smelled rotting that caused him to recall or relive frightening experiences of combat. He indicated that just a plane flying overhead brought him back. He went to Vietnam reunion in May and after that he had a lot of dreams and felt depressed. He became tearful when talking about these things and felt guilty that he had left others behind. His sleep was poor, and work and family were his interests. He was doing okay, and had basically no problems with his marriage. On mental status examination, he had good grooming and hygiene, and had good eye contact and was friendly. He reported being "kinda depressed", but did not want to take any of "those medications". His affect was concerned, his thoughts were linear, and he had not thoughts of harming himself or others. It was noted that he had somatic preoccupations. The diagnosis was somatization disorder and combat-related PTSD, and a GAF score of 65 was assigned. It was noted that his last GAF score was 60 in October 2007. In late July 2009, he was seen and reported he was sleeping "good" now. He had been doing well with Temazepam, but quit taking it recently because of being on pain medication (Oxycodone) due to having had wrist surgery a few weeks prior. He had not wanted or needed the Temazepam while he was on the pain medication. His sleeping better had done away with the nightmares and this helped him with depression and tearfulness during the day. He felt like he was back to his old self. He was to restart the Temazepam when he was off the pain medication. On mental status examination he was alert and oriented, his mood was euthymic, his thoughts were linear, and he had no thoughts of harming himself or others. A GAF score of 65 was assigned. On a VA examination in September 2009, the Veteran reported he had aggravating dreams, sometimes three to five times a month, as well as some recurring nightmares about combat, but would get about seven hours of sleep a night. He reported having intrusive thoughts particularly if he has had a nightmare. He reported intrusive thoughts and guilt. He reported he would go out to eat on occasion, but did not like not knowing who was behind him. He did go to large stores, and watched the news and war movies, but was not sure if enjoyed war movies. He had been married to his second wife for five years and said they get along fairly well and were close. He worked as a front end loader operator for 17 years and had not been written up lately. Generally when he got home from work he did not do much, except watch television, and would visit occasionally with his son and with a brother. On mental status examination he was cooperative, had good eye contact, and his speech was within normal limits. His mood was euthymic and affect was appropriate to content. His thought processes and associations were logical, and memory was grossly intact. He was oriented in all spheres, and did not report hallucinations. His insight and judgment were adequate, and he denied suicidal or homicidal ideation. The diagnosis was chronic PTSD, and a GAF score of 65 was assigned. The examiner opined that the Veteran's symptoms were mild and had persisted for a number of years. VA treatment records showed that in late September 2009, the Veteran was seen in the mental health clinic, and reported he was doing alright, experienced few dreams, and was still thinking about mistakes he felt he made in Vietnam. He reported that Temazepam worked very well for his sleep. On mental status examination his mood and affect were described as "ok" and euthymic. His thoughts were linear and goal directed, and he had not thoughts of harming himself or others. A GAF score of 65 was assigned. In November 2009, he reported he was doing a lot better. He still had problems waking up, but did not want to take medication for it. He felt that Vitamin D had been helping his moods and his muscle strength, and noted that he had been exercising with barbells as rehabilitation for his wrist surgery. On mental status examination, his mood and affect were described as up and down but manageable, and euthymic. The diagnosis was PTSD with insomnia, and a GAF score of 65 was assigned. In his substantive appeal (VA Form 9), received on July 27, 2010, the Veteran reported he last worked in June 2010, and that his PTSD was part of the reason he was no longer working, because he did not get along with people anymore. He reported his first marriage ended because of his problems, and that he was bothered by fireworks, was unpredictable, and stayed aggravated a lot of the time. He reported memory problems, little motivation, and thoughts and feelings of guilt about what happened in Vietnam. On a VA examination in January 2012, the Veteran reported problems with depression, poor concentration, excessive anger, irritation, sleep disturbance, nightmares, guilt, nervousness, and panic. He often thought about his time in Vietnam at night, making it hard for him to fall asleep. He estimated he was depressed about 30 percent of the time, became nervous easily, and became panicky in stores. He could go to a restaurant if it was empty, woke up at night startled and in a rage, dreamed of Vietnam three times a week, and had problems falling asleep and staying asleep. He became angry, but was more controlled than in the past. He had problems concentrating, and made more mistakes while driving than he did in the past. He often thought about his combat experiences. He reported working as a front end loader for 18 years, but ended that job in June 2010, taking an early retirement because of difficulty getting along with other people, anger, and panic episodes. He spent his time working on a boat and watching television, did some simple cooking, and took meals to his handicapped stepdaughter who lived nearby. He did not have any friends and did not do any social activities with his wife. On objective examination, the Veteran appeared appropriately groomed, he was open and cooperative with good eye contact, his speech was clear, his affect was sad, and his overall mood was anxious and depressed. His orientation was appropriate and thinking was logical, and thought content was notable for preoccupation with events that occurred in Vietnam. His relationships with others seemed fair in quality but with a low frequency of contact and a preference for being along. His concentration was appropriate, his reasoning skills indicated the capacity for abstract thinking, and his judgment was diminished by his anxiety, leading to isolation. It was noted that the Veteran was aware of his problems and was isolating himself in an effort to reduce them. He did not obtain any treatment. The examiner summarized that the Veteran's PTSD was manifested by intrusive memories, nightmares, diminished interest in normal activities, detachment from others, restricted affect, sleep disturbance, anger out bursts, concentration problems, and hypervigilance. The intensity was noted to be moderate to severe with impaired social relationships, occupational functioning, judgment, mood, and range of activities. He was not able to shop, eat in restaurants, or go to movies without excessive anger. He demonstrated reduced reliability and productivity in his occupational and social functioning because of flattened affect, impaired concentration, impaired judgment, disturbances of motivation and mood, and difficulty establishing and maintaining effective relationships. The examiner opined that the Veteran was in need of medication and counseling, but the likelihood of significant change was low. The diagnosis was chronic PTSD, and a GAF score of 50 was assigned due to low social tolerance, no friends, and few outside activities. In August 2012, the Veteran testified that he had dreams, nightmares, sleeplessness, flashbacks, panic attacks, mood swings, road rage, forgetfulness, and thoughts of suicide. He attended a support group at the VA clinic in Fort Smith. He was not working, and reported he took an early retirement because of problems getting along with people. He reported he fished with his wife and grandkids, and talked with his kids. 2. Laws and Regulations Disability ratings are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1, Part 4 (2012). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to compensate entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(2012). The Veteran's PTSD has been rated under the General Rating Formula for Mental Disorders, under which a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is to be assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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 Board notes that with regard to the use of the phrase "such as" in 38 C.F.R. § 4.130, ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only 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). Thus, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In addition to the applicable rating criteria, in rating the Veteran's PTSD, the Board will also consider the GAF scores assigned and the definition of those scores. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (1994) (DSM-IV). The GAF score and the interpretations of the score are important considerations in rating a psychiatric disability. Richard v. Brown, 9 Vet. App. 266, 267 (1996). However, the GAF score assigned, like an examiner's assessment of the severity of a condition, is not dispositive of the rating issue. GAF scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. 38 C.F.R. § 4.126(a). 3. Rating in Excess of 30 Percent, Prior to July 27, 2010 The Veteran essentially contends that his PTSD was more disabling than reflected in the 30 percent rating assigned prior to July 27, 2010. In order for a rating in excess of 30 percent to be granted, the competent evidence of record would basically need to show occupational and social impairment with reduced reliability and productivity due to symptoms such as those listed in the criteria for a 50 percent rating under DC 9411, and/or as other symptoms attributed to his service-connected psychiatric disability, to include PTSD. 38 C.F.R. § 4.130, DC 9411; Mauerhan v. Principi, supra. The evidence of record dated prior to July 27, 2010 consists of subsequent to November 7, 1996 consists of VA treatment records and a VA examination report. After reviewing the pertinent medical evidence of record, the Board finds that the veteran's PTSD manifestations, prior to July 27, 2010, did not meet the criteria for a rating in excess of 30% under the applicable rating criteria. In that regard, the Board notes that prior to July 27, 2010, the Veteran had, at most, mild to minimal industrial and social impairment. The record reflects that the Veteran lived with his wife, who he got along with and was close. He also had relationships with other family members, including a son and brother. Further, he had been working as a front end loader for the past 17 years. Significantly, the Board notes that the evidence of record prior to July 27, 2010, showed that the Veteran complained of sleep problems, nightmares, and intrusive thoughts; however, his mental status examinations during this time were for the most part unremarkable, but did include notations of depressed mood. Further, objective examinations during this time showed an appropriate affect, speech within normal limits, no problems with memory or thought process, adequate insight and judgment, and denial of suicidal or homicidal ideation. With regard to the Veteran's symptoms that have not been specifically listed in DC 9411, as noted above, the symptoms listed in the criteria for a 50 percent rating in 38 C.F.R. § 4.130 that follow the phrase "such symptoms as", are not intended to constitute an exhaustive list, but rather to serve as "examples" of the type and degree of the symptoms, or their effects, which would support the assignment of a particular rating. Mauerhan v. Principi, supra. However, even with consideration of Mauerhan, and the competent evidence of record, to include such symptoms as sleep problems, nightmares, and intrusive thoughts, the Board concludes that symptoms of such a magnitude to approximate the criteria outlined in DC 9411, for a 50 percent rating, have not been shown. In that regard, the Board also notes that the VA records and VA examinations do not show most of the typical symptoms listed in the criteria for a 50 percent rating, nor are similar symptoms shown. Mauerhan v. Principi, supra. Further, a review of the evidence of record for that time period shows that the Veteran's GAF score was assessed to be 65. GAF scores ranging between 61 to 70 reflect some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, and has some meaningful interpersonal relationships. Thus, it appears that from the GAF scores assigned prior to July 27, 2010, that the Veteran's symptoms due to PTSD have been at most mild. The GAF score is, however, only one factor to be considered in ascertaining the degree of impairment caused by psychiatric illness. Further, while the examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered, it is not determinative of the percentage rating to be assigned as the rating depends on evaluation of all the evidence. 38 C.F.R. § 4.126; VAOPGCPREC 10-95. In summary, the preponderance of the evidence reflects that prior to July 27, 2010, the Veteran's PTSD did not, at any time, meet or approximate the criteria for a 50 percent rating; thus his service-connected PTSD was no more than 30 percent disabling, prior to July 27, 2010. Fenderson v. West, supra. Consequently, the benefit-of-the-doubt rule does not apply, and the claim for a rating in excess of 30 percent for PTSD, for the period prior to July 27, 2010, must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Rating in Excess of 50 Percent, Effective from July 27, 2010 The Veteran contends that his PTSD is more disabling than currently rated, effective from July 27, 2010. During this period, he reported that his PTSD caused him to suffer various symptoms including depression, poor concentration, excessive anger, irritation, sleep disturbance, nightmares, guilt, nervousness, intrusive t thoughts, diminished interest in normal activities, detachment from others, and panic. With regard to occupational impairment, the record shows that the Veteran had worked as a front end loader for 18 years, but ended that job in June 2010, reportedly taking an early retirement because of his difficulty getting along with other people, anger, and panic episodes. After reviewing the record the Board finds that, although there may be or may have been some evidence of some of the criteria required for a rating of 70 percent, and comparable symptoms, the competent medical evidence and his reported symptoms, do not show that the manifestations of his PTSD more closely approximate the criteria necessary for a higher rating of 70 percent. 38 C.F.R. § 4.7. The Board will discuss separately each of the criteria required for a 70 percent rating. In that regard, although some of the Veteran's recorded symptoms are not specifically provided for in the Rating Schedule, such as nightmares, anger, sleep disturbance, guilt, or flashbacks, the symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim. Mauerhan v. Principi, supra. The criteria listed in Diagnostic Code 9411 provides for a 70 percent rating, include occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. In this case, the Veteran is not attending school, so that is not a factor for consideration. With regard to work, the Board notes that, although the Veteran's PTSD may have affected his employment, the fact remains that the Veteran was able to work for 18 years as a front end loader. Although he attributes his difficulty obtaining and maintaining employment solely to PTSD symptoms, the evidence of record does not fully support that contention, as his employer indicated he retired. Moreover, with regard to social impairment, the Board notes that, while impairment has been shown and the Veteran essentially reported he isolates himself, the record shows that the Veteran maintains relationships with his wife and other family members. With regard to symptoms needed to warrant a 70 percent rating, the Board notes that the criteria for rating mental disorders list a variety of symptoms that would support each rating. However, the list is not exhaustive. While the Veteran testified he had suicidal thoughts, he was clear that this had only crossed his mind and had not planned or tried anything. On examination, his speech was normal, and while he reportedly had panic episodes, those symptoms have never been show to rise to the level of affecting his ability to function independently, appropriately, and effectively. While the Veteran did report having anger issues, at no time, from July 27, 2010, has there been any finding of, or even approximating, spatial disorientation or neglect of personal appearance and hygiene. While regard to occupational impairment, the Veteran contends he took an early retirement in June 2010, basically due to his PTSD and inability to get along with others. Prior to June 2010, the Veteran was employed as a front end load driver for 18 years. In December 2011, his former employer indicated that the Veteran had retired in June 2010. Received from the Veteran in December 2011 was a formal claim (VA For 21-8940) for a total rating based on individual unemployability due to service-connected disability in which he claimed his PTSD prevented him from securing and following substantially gainful employment. While the Board concedes that the Veteran's PTSD has no doubt caused some difficulty with work and some occupational impairment, he has had extended periods of employment, and his work difficulties, in part, stem from other disabilities. In that regard, on a VA examination in January 2012, the examiner opined that the Veteran's headaches, low back pain, psychiatric condition, DVT, and age all limited his ability to work. In addition, an inability to establish and maintain effective relationships has not been shown of late. While the Veteran has basically reported problems establishing friendships, he has maintained good relations with some family members, including his wife. Further, while the Veteran testified in August 2012 that he was having ongoing symptoms related to his PTSD, the Board finds that his testimony does not show that his PTSD symptoms had worsened beyond that shown on the VA examination in January 2012, such that the criteria for a 70 percent rating were met or approximated. 38 C.F.R. §4.7. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his PTSD condition, and acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned rating reflects. Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for those purposes. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the competent medical evidence offering detailed and specific determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the PTSD symptoms on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. In summary, effective from July 27, 2010, the findings in such areas as work, family relations, judgment, thinking, and mood do not show that the Veteran has deficiencies in most areas, so as to support the assignment of a 70 percent rating. While the Veteran may have had some problems in some of those areas, he has for the most part not had problems (or had minimal problems) in these areas. Rather, it appears that his PTSD manifestations more nearly approximate the criteria for a 50 percent rating. 38 C.F.R. § 4.7. The Board also notes that the a GAF score of 50 was assigned in January 2012. According to the DSM-IV, a GAF score of 41-50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning. When this GAF score is considered with other findings in the medical evidence, the Board finds that the criteria for a rating in excess of 50 percent still have not been met. With consideration of the Veteran's complaints, symptoms, and clinical findings of record, the Board concludes that his PTSD manifestations do not approximate the criteria for a 70 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). Accordingly, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's PTSD meets, or more nearly approximates, the criteria for a 70 percent rating, effective from July 27, 2010. 38 C.F.R. § 4.130, Diagnostic Code 9411. Thus, he is not entitled to an initial rating in excess of 50 percent for his PTSD, from July 27, 2010, and there is no reasonable doubt to resolve in his favor. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). 5. Extraschedular Consideration The Board also finds that the Veteran's PTSD does not warrant referral for consideration of the assignment of an extra-schedular rating at any point during the appeal period. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1) . There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds that the Veteran's disability picture due to his service-connected PTSD is adequately contemplated by the rating schedule. The rating criteria take into account social and occupational functioning in assessing the severity of his PTSD, and provide for a greater rating for more severe impairment. The record shows that he has maintained periods of employment, and while he has claimed that his PTSD affects his ability to work, the rating criteria for PTSD reasonably describes his disability level and symptomatology. Thus, the evidence does not show that the rating criteria are inadequate and referral for the assignment of an extraschedular disability rating are not met. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Service connection for tinnitus is granted. Entitlement to an initial disability rating for PTSD, in excess of 30 percent prior to July 27, 2010, and in excess of 50 percent since July 27, 2010, is denied. ______________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs