Citation Nr: 1603570	
Decision Date: 02/02/16    Archive Date: 02/11/16

DOCKET NO. 13-05 376	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Huntington, West Virginia


THE ISSUES

1. Entitlement to service connection for a right knee disability. 

2. Entitlement to service connection for a cervical spine disorder. 

3. Entitlement to service connection for a lumbar spine disorder. 

4. Entitlement to service connection for a left ear hearing loss disability. 

5. Entitlement to service connection for a heart disorder. 

6. Entitlement to service connection for allergic rhinitis, claimed as a sinus disorder and breathing difficulty. 

7. Entitlement to an initial rating in excess of 50 percent for anxiety and depressive disorder, effective March 22, 2010. 

8. Entitlement to an initial compensable rating for a right ear hearing loss disability, effective March 22, 2010. 

9. Entitlement to a total rating for individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	West Virginia Department of Veterans Assistance


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

Harold A. Beach, Counsel


INTRODUCTION

The Veteran served on active duty from July 1980 to July 2000.

This case was previously before the Board of Veterans' Appeals (Board) in March 2015, when it was remanded for further development. Following the requested development, the RO confirmed and continued its denial of entitlement to service connection for a right knee disability, a cervical spine disorder, a lumbar spine disorder, a left ear hearing loss disability, a heart disorder, and allergic rhinitis. The RO also confirmed and continued the initial 50 percent rating for the Veteran's service-connected anxiety and depressive disorder, the initial noncompensable rating for his right ear hearing loss disability, and the denial of the claim for a TDIU. Thereafter, the case was returned to the Board for further appellate action.

In October 2014, during the course of the appeal, the Veteran had a video conference with the Veterans Law Judge whose signature appears at the end of this decision. During that conference, the Veteran noted that he had chronic obstructive pulmonary disease and suggested that it could be related to service. That claim has not been certified to the Board on appeal nor has it otherwise been developed for appellate purposes. Therefore, the Board has no jurisdiction over that claim and it will not be considered below. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.101 (2015). It is referred to the RO, however, for appropriate action. 


FINDINGS OF FACT

1. A right knee disability, diagnosed primarily as osteoarthritis and a torn medical meniscus, was first manifested many years after the Veteran's retirement from the service, and the preponderance of the evidence is against a finding that it is in any way related to service. 

2. A cervical spine disorder, diagnosed primarily as degenerative joint disease, was first manifested many years after the Veteran's retirement from the service, and the preponderance of the evidence is against a finding that it is in any way related to service. 

3. A lumbar spine disorder diagnosed primarily as degenerative joint disease, was first manifested many years after the Veteran's retirement from the service, and the preponderance of the evidence is against a finding that it is in any way related to service. 

4. The presence of a left ear hearing loss disability for VA purposes has not been established. 

5. A heart disorder, diagnosed primarily as ischemic heart disease and coronary artery disease, was first manifested many years after the Veteran's retirement from the service, and the preponderance of the evidence is against a finding that it is in any way related to service. 

6. Non-seasonal allergic rhinitis was first manifested many years after the Veteran's retirement from the service, and the preponderance of the evidence is against a finding that it is in any way related to service. 

7. Since service connection became effective March 22, 2010, the Veteran's anxiety and depressive disorder have been productive of no more than occupational and social impairment with reduced reliability and productivity.  

8. Since service connection became effective March 22, 2010, the Veteran's right ear hearing loss disability has been productive of no worse than Level I hearing acuity. 

9. The Veteran is not totally deaf in his nonservice-connected left ear. 

10. The Veteran has a combined rating of 60 percent due to the his service-connected anxiety and depressive disorder, evaluated as 50 percent disabling; tinnitus, evaluated as 10 percent disabling; and a right ear hearing loss disability, evaluated as noncompensable. 

11. The Veteran has a high school education and work experience as a convenience store manager, a newspaper circulation manager, a security guard, a children's program coordinator, and a special education aide.

12 The Veteran's service-connected disorders do not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. 



CONCLUSIONS OF LAW

1. A right knee disability is not the result of disease or injury incurred in or aggravated by service, nor may osteoarthritis of the right knee be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2015).

2. A cervical spine disorder, diagnosed primarily as degenerative joint disease, is not the result of disease or injury incurred in or aggravated by service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2015).

3. A lumbar spine disorder, diagnosed primarily as degenerative joint disease, is not the result of disease or injury incurred in or aggravated by service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2015).

4. The claimed left ear hearing loss disability is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.385 (2015). 

5. A heart disorder, diagnosed primarily as ischemic heart disease and coronary artery disease, is not the result of disease or injury incurred in or aggravated by service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2015). 

6. Allergic rhinitis, claimed as a sinus disorder and breathing problems, is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.317 (2015). 

7. Since service connection became effective March 22, 2010, the criteria for an initial rating in excess of 50 percent for anxiety and depressive disorder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9413 (2015). 

8. Since service connection became effective March 22, 2010, the criteria for an initial compensable rating for a right ear hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.85, Diagnostic Code 6100 (2015). 

9. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, (West 2014); 38 C.F.R. §§ 3.159, 3.341, 4.16 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The VA's Duty to Notify and Assist

Prior to consideration of the merits of the appeal, the Board must determine whether the VA has met its statutory duty to notify and assist the Veteran in the development of his claims of entitlement to service connection for a right knee disorder, a cervical spine disorder, a lumbar spine disorder, a left ear hearing loss disability, a heart disorder; his claims for increased ratings for his service-connected anxiety and depressive disorder and for his service-connected right ear hearing; and his claim for a TDIU. VA has met that duty.

On March 22, 2010, the RO received, the Veteran's application for entitlement to service connection for hearing loss disability, a cervical spine disorder, a lumbar spine disorder, a right knee disorder, a heart disorder, a psychiatric disorder claimed as PTSD, and a disorder manifested by sinus and breathing problems. Thereafter, the RO advised the Veteran by letter of the elements of service connection and informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim. That information satisfied the VA's duty to notify the Veteran with respect to his claims for service connection. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. 473 (2006).

In October 2010, the RO granted the Veteran's claim of entitlement to service connection for a psychiatric disorder, characterized as anxiety and depressive disorder and assigned a 50 percent rating. The RO also granted entitlement to service connection for a right ear hearing loss disability and assigned a noncompensable rating. Both of those disability ratings became effective March 22, 2010. The RO denied entitlement to service connection for a right knee disability, a cervical spine disorder, a lumbar spine disorder, a left ear hearing loss disability, a heart disorder, and allergic rhinitis. In November 2010, the Veteran disagreed with those percentage ratings and with the denials of service connection, and this appeal ensued. In his notice of disagreement, he also claimed entitlement to a TDIU.

In January 2011, the RO notified the Veteran of the information and evidence necessary to substantiate and complete the increased rating claims and the claim for a TDIU. The RO informed the Veteran that in order to establish an increased rating for his service-connected disability, the evidence had to show that the disability had worsened and the manner in which such worsening had effected his employment and daily life. The RO also informed the Veteran of the evidence he would need to provide and the evidence the VA would attempt to obtain. 38 U.S.C.A. § 5103(a). The duty to notify is satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. 473 (2006).

The VA's duty to assist includes helping veterans to obtain evidence necessary to substantiate their claims. This could include service treatment records and post-service records reflecting the Veteran's treatment by the VA and non-VA health care providers. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The electronic claims file contains the Veteran's service treatment records; records reflecting his treatment by private health care providers from May 2009 through December 2012; records reflecting his VA treatment from July 2010 to June 2015; his Social Security records; and the transcript of his October 2014 video conference. The duty to obtain relevant records is satisfied. 38 C.F.R. § 3.159(c).


The video conference transcript shows that the Veterans Law Judge explained the issues fully and suggested the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The conduct of the hearing was performed in accordance with the provisions of 38 C.F.R. § 3.103(c)(2). Therefore, there was no prejudice to the Veteran's claim as a result of the conduct of that hearing. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)).

The VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Appropriate VA medical inquiry was accomplished in August, September, and October 2010, December 2012 and January 2013 and is factually informed, medically competent and responsive to the issues under consideration. Monzingo v Shinseki, 26 Vet. App. 97 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). 

In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support and of his claims; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal.

Analysis

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A. "), regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R. ") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir. ") and the Court of Appeals for Veterans Claims as noted by citations to "Vet. App. ")
The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d), 38 C.F.R. § 19.7; see, Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999), Gilbert v. Derwinski, 1 Vet.App. 49, 56, 57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the Board first determines whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) A layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) The layperson is reporting a contemporaneous medical diagnosis, or;

(3) Lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). 

The Veteran is competent to testify about what he experienced during and since his retirement from the service. For example, he is competent to report that he first experienced neck pain in service and that it has been present since that time. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, there is no evidence to suggest that he is competent by training or experience to diagnose any pathology causing his current neck pain. The question of an etiologic relationship between an injury and the development of a chronic, residual disorder involves a medical issue. Thus, the question of etiology in this case may not be competently addressed by lay evidence. See Davidson, 581 F.3d at 1316. Further, the Veteran has not reported having a diagnosis of a chronic, identifiable cervical spine disorder in service, nor is there evidence of her symptoms supporting a later diagnosis of an inservice disorder. Not only is a chronic, identifiable cervical spine disorder uncorroborated by the evidence in service; it is contradicted by more contemporaneous, probative, and accurate evidence of record. Curry v. Brown, 7 Vet. App. 59 (1994) (Contemporaneous evidence has greater probative weight than a history reported by the Veteran.). His lay assertions have been investigated by competent medical examination and found not supportable. Jandreau, 492 F.3d at 1376-77 .

Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, supra. 

In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999); Evans v. West, 12 Vet. App. 22 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993).

The Service Connection Claims

Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). 

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). 

Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 

For certain disabilities, such as arthritis and cardiovascular disease, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of a veteran's discharge from active duty. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307. 

The law and regulations also permit service connection for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

The report of the Veteran's March 1980 service entrance examination is negative for any complaints or clinical findings of a right knee disorder, cervical or lumbar spine disorder, left ear hearing loss disability, heart disorder, or allergic rhinitis. The Veteran is therefore presumed to be in sound condition at the time he entered service as it relates to those disorders. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2015). 

The Right Knee

During his video conference, the Veteran testified that he wrenched his knee in the service, while moving some equipment. He acknowledged that he did not seek medical treatment but noted that he has had chronic right knee pain since that time. Therefore, he maintained that service connection was warranted. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. 

In September 1992, during his annual physical examination in service, the Veteran complained that his right knee gave way. On examination, his lower extremities were found to be normal. During his May 2000, service retirement examination, he complained that his right knee locked occasionally. Again, however, his lower extremities were found to be normal. 

The record is negative for any further reports of right knee pain until approximately 10 years later, in a September 2010 VA examination, when the Veteran reported a history of knee pain. 

In June 2011, during a period of VA hospitalization, the Veteran twisted his right knee. X-rays were negative for any bony abnormality. Thereafter, he was seen by the VA Physical Rehabilitation Service. In August 2011, he reported that he had experienced right knee pain since service. Following treatment I June 2012, the diagnosis was chondromalacia. 

In December 2012, the VA examined the Veteran to determine the nature and etiology of any right knee disorder. An MRI confirmed the diagnoses of degenerative joint disease (arthritis) and a tear in the posterior horn of the right medial meniscus. The examiner noted the history of the Veteran's right knee complaints in service in 1992 and at the time of his retirement examination. However, he noted that examinations had shown the knee to be normal. Therefore, the examiner opined that it was less likely than not that the Veteran's right knee disorders were due to service. 

The evidence shows that a chronic, identifiable right knee disorder, variously diagnosed as chondromalacia, degenerative joint disease, and a torn medial meniscus, was first reported many years after service, and the preponderance of the evidence is against a finding that it is in any way related to service. Not only are the service treatment records negative for a chronic, identifiable right knee disorder, the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also, Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). In addition, there is no evidence of a nexus between the Veteran's current right knee disorder and any incident in service. Indeed, the preponderance of the evidence, including the report of the December 2012 VA examination, is against the claim. 

Absent evidence of a chronic, identifiable right knee disorder in service and the lack of a nexus between the current right knee disorder and service, the Veteran does not meet the criteria for service connection. Accordingly, service connection for a right knee disorder is not warranted, and the appeal is denied. 

The Cervical and Lumbar Spines

During his video conference, the Veteran testified that he sustained a cervical spine disorder, when he was involved in a motor vehicle accident in service. He reported that he injured his lumbar spine in the same accident and that he also injured his spine doing heavy lifting in service. He stated that since his retirement from the service, he had had problems with his cervical and lumbar spines and that service connection was, therefore, warranted. However, after carefully considering those claims in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against those claims. Accordingly, those appeals will be denied. 

In January 1982, the Veteran complained of an 8 hour history of back pain, chills, diarrhea, light-headedness, a sore throat, and general malaise. The diagnosis was viral syndrome.

In June 1983, the Veteran sustained "whiplash" in a motor vehicle accident. Although he complained of pain in the lumbar and cervical spines, X-rays of each area were normal. 

In November 1996, the Veteran complained of a 10 hour history of left sided back pain with deep inhalation. The diagnosis was muscle strain of the left lateral back and obliques. 

During his May 2000 service retirement examination, the Veteran responded "YES", when asked if he then had, or had ever had, recurrent back pain.  However, on examination, his head, face, neck, scalp, and spine were found to be normal. 

In August 2010, the Veteran was examined by the VA to determine the nature and etiology of any cervical or lumbar spine disorder. X-rays confirmed the diagnosis of minimal degenerative joint disease in each area The examiner noted that the only documented cervical spine problem in service had been the 1983 whiplash injury and that the Veteran had reported no complaints or clinical findings of a cervical spine disorder for the remainder of service. The VA examiner further noted that the back pain in service had not been associated with a chronic, identifiable back disability. In addition, he found that the minimal degenerative joint disease shown during the examination X-rays was consistent with the aging process. For these reasons, the VA examiner opined that it was less likely than not that either the cervical spine disorder or the lumbar spine disorder were related to service. 

In February 2013, X-rays of the Veteran's lumbosacral spine revealed bilateral L5 spondylolysis with grade I spondylolisthesis of L5 on S1; a bridging osteophyte formation at the left sacroiliac joint with progression; and degenerative disc disease at L5-S1 In September 2013, an MRI confirmed the presence of degenerative changes in the Veteran's lumbosacral spine. 

The evidence therefore shows that while the Veteran injured his cervical spine in service and reported lumbar spine pain in service, they were not productive of any chronic, identifiable disability in either area. Both the cervical and lumbar spines were normal at the time of the Veteran's separation from the service; and there was no chronic, identifiable disability in either area until many years later. 

During his video conference, the Veteran acknowledged that no health care provider had ever told him that there was a nexus between his degenerative joint disease of the cervical spine or his degenerative joint disease of the lumbar spine and service; and the VA has received no competent, objective evidence to the contrary. 

Absent a chronic, identifiable cervical or lumbar spine disorder in service or a nexus between service and his current cervical or lumbar spine degenerative joint disease, the Veteran does not meet the criteria for service connection. Accordingly, service connection is not warranted for either disorder, and those appeals are denied. 

The Left Ear Hearing Loss Disability

During his October 2014 video conference, the Veteran testified that he sustained significant noise exposure in both ears. Therefore, he maintained that service connection should be warranted for a hearing loss disability in both ears, not just his right ear. However, after carefully considering those claims in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, that appeal will be denied. 

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

The failure to meet these criteria at the time of a veteran's separation from active service is not necessarily a bar to service connection for a hearing loss disability. A claimant may still establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. see 38 C.F.R. § 3.303(d); Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993);. 

The Veteran had significant noise exposure during his work on an aircraft carrier in service. However, the question is whether that exposure resulted in a chronic, identifiable hearing loss disability. While it did so in the right ear, no such hearing loss disability has been shown in his left ear. Numerous audiograms in service, including those performed during the Veteran's March 1980 service entrance examination and his May 2000 service retirement examination, are negative for a left ear hearing loss disability within the meaning of applicable VA regulations. During those audiograms, the Veteran never demonstrated an average puretone threshold of more than 15 decibels at any of the relevant frequencies. The highest pure tone threshold in the left ear was demonstrated during his service entrance examination. By the time of his service retirement examination, he demonstrated a puretone threshold in the left ear of no more than 5 decibels. Not only did such findings show better left ear hearing acuity than when he entered the service, they did not meet the criteria for a finding of a chronic identifiable hearing loss disability in that ear. More recent audiograms, such as that performed during VA audiologic examinations in September 2010 and January 2013, continue to be negative for a hearing loss disability in the Veteran's left ear. 

During the September 2010 VA audiometric testing, the Veteran demonstrated the following pure tone thresholds, in his left ear:




HERTZ



500
1000
2000
3000
4000
RIGHT





LEFT
10
15
0
15
10






Speech audiometry revealed speech recognition ability of 100 percent in the left ear.

During the January 2013 VA audiometric testing, the pure tone thresholds in the Veteran's left ear were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT





LEFT
20
15
10
20
15

Speech audiometry, again, revealed speech recognition ability of 100 percent in the left ear.

Absent a current left ear hearing loss disability, the Veteran does not meet the criteria for service connection. Accordingly, service connection for the claimed left ear hearing loss disability is not warranted, and the appeal is denied. 

The Heart 

During his October 2014 video conference, the Veteran testified that his current heart disease had initially been manifested by chest pain in service. Therefore, he maintained that service connection was warranted. However, after carefully considering those claims in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, that appeal will be denied. 

During service in 1993 and 1997, the Veteran complained of chest pain. In September 1993, he was admitted to the Virginia Beach General Hospital for complaints of pain radiating across his chest with some tingling in his arm. It was noted that he had no history of cardiac problems. Following his treatment, the impression was chest pain with some features suggestive of ischemia. However, the health care provider stated that in general, the Veteran would seem to have a low likelihood for this being significant ischemic disease. 

In January 1997, the Veteran complained of chest pain in association with gastritis. An unconfirmed EKG was normal. 
 
In May 1997, the Veteran was admitted to the Portsmouth Naval Medical Center for complaints of atypical chest pain. During his stay, he remained free of chest pain, and he demonstrated no abnormal cardiac enzymes, EKG, or other findings consistent with ischemia. The results of a cardiac stress test were also normal. 

During his May 2000 service retirement examination, the Veteran responded "YES", when asked if he then had, or had ever had, pain or pressure in his chest. However, he responded "NO", when asked if he then had, or had ever had, heart trouble. On examination, his lungs, chest, and heart were found normal. An EKG revealed sinus bradycardia and sinus arrhythmia. It was noted that there had been no real EKG change since 1997. There was no diagnosis of a heart disorder.

A chronic, identifiable heart disorder, diagnosed primarily as ischemic heart disease and coronary artery disease, was first manifested in May 2009, when the Veteran was admitted to Logan General Hospital for complaints of chest pressure and pain in both arms with nausea. Following a workup which showed elevated cardiac enzymes, he was transferred to St Mary's Medical Center. He underwent left heart catheterization which showed two completely blocked arteries. Thereafter, he underwent a 5 vessel coronary artery bypass graft (CABG). 

In August 2010, the VA examined the Veteran to determine the nature and etiology of any heart disease. The examiner noted the Veteran's history of chest pain in service 1993 and 1997, as well as post-service chest pain and CABG in 2009. Following the VA examination, the diagnosis was ischemic heart disease with associated coronary artery disease. The examiner opined that it was less likely than not that the Veteran's "current" heart disease was related to his complaints of chest pain in service. The examiner noted that there was no evidence of ischemic heart disease in service and that a period of 9 years elapsed after the Veteran's retirement from the service and the initial diagnosis of ischemic heart disease. 

During a VA examination in December 2012, it was noted that the Veteran's heart disease had had its onset in May 2009. 

In January 2013, the Veteran was granted Social Security Disability benefits primarily due to ischemic heart disease. 

The preponderance of the foregoing evidence is against a finding that the Veteran's heart disease is related in any way to service. Despite the Veteran's complaints of chest pain in service, there were no findings that they represented the initial manifestations of a chronic, identifiable heart disorder. Such a diagnosis was not substantiated until 9 years after service. As above, the normal medical findings at the time of the Veteran's retirement from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. Mense, Maxson, Forshey. In addition, the VA examiner opined that it was less likely than not that the Veteran's heart disease was related to service. There is no probative evidence to the contrary; and therefore, the Board concludes that there is no nexus to service. 

Because the preponderance of the evidence is against a finding of heart disease in service, and because the preponderance of the evidence is against a nexus between the Veteran's heart disease and service, the Veteran does not meet the criteria for service connection. Accordingly, service connection for a heart disorder is not warranted, and the appeal is denied. 

The Allergic Rhinitis 

During his October 2014 video conference, the Veteran testified that a respiratory disorder was first manifested by breathing problems in service. Therefore, he maintained that service connection was warranted. However, after carefully considering those claims in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, that appeal will be denied. 

In an undated service treatment record, written when he was 33 years old (approximately 1995), the Veteran reported a 24 hour history of difficulty breathing and a dry cough. He reported chest pain with deep inspiration, and diffuse scattered wheezes were noted, bilaterally. The diagnoses were viral upper respiratory infection and mild reactive airway disease. 

During his May 2000 retirement examination, the Veteran responded "NO", when asked if he then had, or had ever had, ear, nose, or throat trouble; chronic or frequent colds; sinusitis; hay fever; asthma; shortness of breath; or a chronic cough. On examination, his nose, sinuses, mouth and throat, and lungs and chest were found to be normal. 

During his August 2010 VA examination, the Veteran reported a history of colds, coughs, and breathing difficulty in service. It was noted that the diagnosis had been a viral upper respiratory infection. X-rays showed that the Veteran's sinuses were clear. Following the VA examination, the diagnosis was non-seasonal allergic rhinitis. The examiner opined that it was not related to the Veteran's complaints during military service. The examiner noted that the Veteran had fairly constant nasal congestion typical of a non-seasonal allergic rhinitis but that the only entry in his service treatment records relative to any breathing difficulty was an undated note. The examiner reported that the Veteran had been coughing and wheezing and had had difficulty breathing. However, the examiner noted no mention of nasal congestion. The VA examiner stated that since 2003, the Veteran had been a patient of the VA. However, the examiner found no consultations with the Ear, Nose, and Throat service and no mention of allergic rhinitis or nasal congestion on the Veteran's problem list. 

The Veteran's Social Security records show that in 2012, the Veteran was treated at the Family Allergy and Asthma Clinic for allergies. An inhaler and medication were prescribed. 

Although the Veteran reported difficulty breathing on one occasion in service in approximately 1995, there were no findings of a chronic, identifiable respiratory disorder, including allergic rhinitis. He served the remaining 5 years of service without any complaints or clinical findings of breathing difficulty or sinus problems. The report of his May 2000 service retirement examination was also negative for any relevant complaints or clinical findings. Non-seasonal allergic rhinitis was first manifested during the Veteran's VA examination in August 2010. Again, the normal medical findings at the time of the Veteran's retirement from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. Mense, Maxson, Forshey. In addition, the VA has examined the Veteran specifically to determine whether there was a nexus between the Veteran's current non-seasonal allergic rhinitis and service. The examiner found that the evidence was against such a nexus.

Absent a finding of allergic rhinitis in service, and absent a nexus to service, the Veteran does not meet the criteria for service connection on a direct basis. However, that does not end the inquiry. On his original claim, VA Form 21-526, received in March 2010, the Veteran suggested that his sinus problems and breathing difficulty were the result of an undiagnosed illness associated with his participation in the Persian Gulf War. 

Service connection may be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on undiagnosed illness, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). 

The term "Persian Gulf Veteran" means a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). 

A "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the VA Secretary determines in regulation prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2) ; 38 C.F.R. § 3.317(a)(2)(i)(B). 

A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the VA Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). 

The Veteran's service separation report (DD Form 214N) is negative for any awards or decorations or other evidence that he had service in Southwest Asia during the Persian Gulf War. Moreover, even if he participated in that war, the evidence shows that his breathing difficulties were not chronic in nature and did not last for a period of more than 6 months. The evidence shows that he did complain of breathing difficulty on one occasion several years after the Persian Gulf War. However, there was no evidence of a chronic, identifiable disorder, manifested by those problems. In addition, the Veteran's current breathing difficulties are manifestations of a known clinical diagnosis, non-seasonal allergic rhinitis. There are no findings that they are part of a medically unexplained chronic multisymptom illness or any diagnosed illness that the VA Secretary has determined warrants a presumption of service connection. Accordingly, the Veteran does not meet the criteria for service connection for an undiagnosed respiratory illness due to participation in the Persian Gulf War. Therefore, service connection is not warranted on that basis, and the appeal is denied. 

Additional Considerations

In arriving at the foregoing decisions, the Board has considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves a claim. In this case, the preponderance of the evidence is against the Veteran's claims. Therefore, the doctrine of reasonable doubt is not applicable. 

The Increased Rating Claims

The Veteran also seeks increased ratings for his service-connected anxiety and depressive disorder (psychiatric disorders) and for his service-connected right ear hearing loss disability. 

Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of VA's Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 

During an appeal, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. When, as in this case, service connection is granted and an initial rating award is at issue, separate ratings can be assigned for separate periods from the time service connection became effective. Fenderson v. West, 12 Vet. App. 119 (1999)  Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 
Anxiety and Depressive Disorder

During his October 2014 video conference, the Veteran testified that since service connection became effective, he did not like to be in big crowds and that he isolated himself. He also reported that he experienced road rage and suicidal ideation. He noted that he was disoriented at times, due in part to his psychotropic medication. Therefore, he maintained that an increased initial rating was warranted. However, after carefully considering those claims in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against those claims. Accordingly, those appeals will be denied. 

The service-connected anxiety and depressive disorder are rated in accordance with the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9413. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty 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; and difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating is warranted 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 worklike setting); and inability to establish and maintain effective relationships. Id.

The symptoms listed in the General Rating Formula are examples, not an exhaustive list and that any suggestion that the Board is required to find the presence of all, most, or even some of the enumerated symptoms is unsupported by a reading of the plain language of the regulation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). When determining the appropriate rating to be assigned for a service-connected mental health condition, the focus is on how the frequency, severity, and duration of the symptoms affect the Veteran's occupational and social impairment, rather than on an absence of particular symptoms listed in the schedular criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013) 

Relevant to an evaluation of the level of impairment caused by his service-connected anxiety and depressive disorder is the score on the Veteran's Global Assessment of Functioning (GAF) Scale. That scale is found in the DSM-IV and reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996). The nomenclature in DSM IV has been specifically adopted by VA in the evaluation of mental disorders. 38 C.F.R. § 4.125, 4.130 (2015). 

A GAF of 61 to 70 reflects some mild symptoms, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships. DSM IV at 32.

A GAF of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning. Id.; see Carpenter v. Brown, 240, 242 (1995). 

While important in assessing the level of impairment caused by psychiatric illness, the GAF score is not dispositive of the level of impairment cause by such illness. Rather, it is considered in light of all of the evidence of record. See Brambley v. Principi, 17 Vet. App. 20, 26 (2003); Bowling v. Principi, 15 Vet. App. 1, 14 (2001).

Effective March 19, 2015, VA revised that portion of its Schedule for Rating Disabilities dealing with mental disorders. The revisions replaced outdated references in earlier editions of the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS with revisions in the recently updated Fifth Edition (DSM-5). Such revisions apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014. VA did not intend for the revisions to apply to claims that were pending before the Board (i.e., certified for appeal to the Board on or before August 4, 2014), the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims are subsequently remanded to the agency of original jurisdiction. Because this case was certified to the Board prior to August 4, 2014, the revised regulations do not apply.

During a September 2010 VA psychiatric examination, the Veteran was irritable, anxious, and depressed, and he reported fair impulse control. He demonstrated a rambling thought process and reported intermittent panic attacks. Otherwise, his speech was unremarkable, and he was cooperative with an appropriate affect. His attention was intact, and he was oriented to time, place, and person. His memory was normal With respect to insight, he understood that he had a problem. With respect to judgment, he understood the outcome of his behavior. He reported fleeting suicidal ideation but no homicidal ideation. 

The impact of his service-connected anxiety and depressive disorder on his daily activities included moderate impairment on shopping, self-feeding, other recreational activities, and slight impairment on his performance of household chores, bathing, sports/exercise, traveling, driving. His service connected anxiety and depressive disorder had no impact on his toileting or dressing/undressing. It was noted that he had become the guardian for his cousin's 4 young children. 

From October 2010 through December 2012, the Veteran was followed by the VA Mental Health Service for anxiety and depression. Generally, his mood was depressed, and his affect was restricted. He was angry and dissatisfied with the VA for its failure to help him. In February 2011, he reportedly quit his job due to stress. The assigned GAF ranged from 55 in October 2010 to 63 in January 2011. 

In December 2012, the Veteran was examined by VA. He complained of sleep impairment, nightmares, social isolation, decreased motivation, periods of crying, periods of hopelessness, and forgetfulness. 

The Veteran reported that he lived with his wife of ten years his mother-in-law and his four children. He reported that he spent time with family members and that he helped with the children minimally. He stated that his mother-in-law prepared the meals primarily and that he helped the children with their homework. He noted that there were times when there was too much noise from the children, and that he had to get away from it. He further stated that going shopping created too much anxiety for him. He stated that people were so rude and obnoxious that he didn't have the tolerance for it. He noted that he said what was on his mind and that his statements usually got him in trouble. The Veteran reported that he experienced some irritability in interactions with family members and indicated that he just tried to separate himself from frustrating situations. 

In addition to the four children at home, the Veteran reported that he had four adult children and that he had regular contact with them. He stated that his daughter lived nearby and visited every weekend. He noted that when the whole family got together, he would more often than not separate himself. He reported that he did not have friends outside his family. He stated that when he worked, he had friends at work but that he had become antisocial. He reported that he has lost interest in many activities he previously enjoyed such as bowling, fishing, and reading. He noted that he had had heart attack a couple of years earlier and felt that life had not been worthwhile since that time. He reported that he did not have any energy and that he took multiple types of medication. 

The Veteran reported that he was unemployed and that he had last been employed as a manager of a convenience store in 2010. He stated that he had stopped working, because he was going to the hospital every two months with chest pains. He stated that his cardiologist had told him that he had to make a lifestyle change. He noted that he had no tolerance for ignorant or lazy people and that he did not have any sympathy. He reported some verbal acting out but indicated that he was generally capable of completing occupational tasks with effort. 

On examination, the examiner noted that the Veteran's service-connected psychiatric disorders were manifested by a depressed mood, anxiety, suspiciousness, sleep impairment, mild memory loss, impaired judgment, and suicidal ideation. 

The examiner reported that the Veteran had an occupational history characterized by generally adequate reliability and productivity. The examiner reported that the Veteran's primary problems had been interpersonal in nature and that he had had difficulty relating to others appropriately at times. The Veteran reported irritability, low frustration tolerance, and a history of verbal acting out. The examiner opined that the Veteran would likely be capable of completing occupational tasks from a mental health perspective but would likely function best in occupational settings that required minimal interpersonal interaction. 

The examiner assigned a GAF of 55 and opined that the Veteran's service-connected anxiety and depressive disorder were productive of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with normal routine behavior self-care and conversation. 

From May 2013 through November 2014, the Veteran continued to be followed by the VA Mental Health Service. He demonstrated a depressed mood and restricted affect. At times, his grooming was marginal. In May and June 2013, his assigned GAF was 55. In May 2014, he reported that he was more depressed, because he could no longer do what he used to do. 

Since service connection became effective March 22, 2010, the Veteran's service connected anxiety and depressive disorder have been primarily manifested by a depressed mood, sleep impairment, irritability, decreased motivation, and social isolation. The VA examinations also show a rambling thought process, intermittent panic attacks, anxiety, suspiciousness, memory loss, impaired judgment, and suicidal ideation. 

Although the 70 percent rating criteria contemplate deficiencies in "most areas," including work, school, family relations, judgment, thinking, or mood, such deficiencies must be "due to" the symptoms listed for that rating level, "or others or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). 

Otherwise stated, simply because this Veteran has depressed mood, and because the 70 percent level contemplates a deficiency in "mood" among other areas, does not mean his anxiety and depressive disorder rise to the 70 percent level. Indeed, the 50 percent and 70 percent criteria each contemplate some form of mood impairment. The Board, instead, must look to the frequency, severity, and duration of the impairment. 

The Veteran's depressed mood is not so severe that it affects his ability to function independently, appropriately and effectively. He is the guardian of his cousin's four children. He helps them with their homework and stays home to raise the children. While he states that at times, the noise upsets him, he generally gets along well with his family. Both VA examiners and the VA health care providers concur that from a mental health standpoint, the Veteran's service-connected anxiety and depressive disorder have been productive of no more than moderate social and occupational impairment. When he did work outside the home, the Veteran's service-connected anxiety and depressive disorder reportedly lead to verbal conflicts requiring social interaction. However, the most recent examiner reported that he could, generally function satisfactorily from a mental health standpoint in those occupations which did not require such interaction. For these reasons, the Board is of the opinion that the Veteran's depressed mood does not meet or more nearly approximate the criteria for a 70 percent rating. 

While the Veteran has reported chronic sleep impairment, that manifestation is contemplated by the criteria included for a 30 percent rating. As such, it is effectively contemplated by the 50 percent rating. 

As to the Veteran's irritability, the evidence does not show that it is unprovoked. It has been associated with instances of verbal conflict. For example, during his December 2012 VA examination, it was noted that while a convenience store manager, he had had verbal conflicts with customers. In October 2010, the VA examiner noted that the Veteran had intermittent periods of anger and destruction of private property. However, there is no evidence to substantiate acts of violence. Therefore, the Veteran's irritability does not meet the criteria for the 70 percent rating. 

While the Veteran reports that he lacks motivation and has been, essentially, anti-social since leaving work, the evidence such as the most recent VA examination report provides evidence to the contrary. As noted above, that report shows that he has strong family ties. He has a regular role in raising his children and the family gathers at his house. He has a good relationship with his adult children and is visited regularly by a daughter who lives nearby. In addition, he has been found to have a strong commitment to his wife and children and states that they give him hope. Accordingly, the Board concludes that the reported lack of motivation is contemplated by the Veteran's current evaluation.  

During his September 2010 VA psychiatric examination, the Veteran demonstrated a rambling thought processes. However, that was not reported during the December 2012 VA examination. During his VA treatment, e.g., May 2011,May 2013, and November 2014, his thought processes were found to be within normal limits or logical, linear and goal directed. As such, the preponderance of the evidence is against a finding of frequent, severe or of long duration of impairment in his thinking. 

In September 2010, the Veteran reported intermittent panic attacks. Such frequency does not meet or more nearly approximate the near continuous panic associated with the 70 percent rating. While the Veteran reports anxiousness in crowds and suspiciousness, his treatment records, such as those, dated in August 2014, show that he maintains good eye contact and speaks with a normal rate, rhythm, and tone. During that treatment, he reported that his anxiety was intermittent in nature. In May 2014, he reported that he had suffered a stroke the previous month and that his anxiety increased the associated tremors. During that treatment, however, there was no psychomotor retardation or agitation, and no abnormal movements were noted. Moreover, the reported stroke was not confirmed during a June 2014 consultation with the VA neurology service. Accordingly, the Board finds that his panic attacks do not meet or more nearly reflect the criteria for a 70 percent rating. 

The suicidal ideation noted during his December 2012 is described in subsequent VA treatment records, such as that dated in May 2013, as passive or fleeting. In addition, the preponderance of the evidence is against a finding that they affect his ability to function independently, appropriately, or effectively. The Veteran stated that he would not do anything to hurt himself, because he had to take care of his wife and children. In that same record he denied any plan or history of suicide attempts. During subsequent VA treatment, such as in June and July 2013 and November 2014 , he denied any suicidal ideation. For these reasons, even when the reported suicidal ideation is considered with his other psychiatric manifestations, the preponderance of the evidence is against a finding that they result in deficiencies in most areas or that it is of frequency, severity or duration such that would result in a higher rating. 

There have been instances where the Veteran's appearance has been reported as marginal. However, during his September 2010 and December 2012 VA examinations, he was neatly groomed and casually/neatly dressed. The subsequent treatment records, dated in May, June, and July 2013, also confirm those reports. Therefore, even if considered marginal at times, the Board concludes that the preponderance of the evidence is against a finding that Veteran neglects his personal appearance and hygiene.

During his December 2012 VA examination, it was noted that the Veteran had memory loss. As with other psychiatric manifestations, such as a depressed mood, memory loss is contemplated by various rating percentages. In this case, the Veteran's memory loss has been shown to be no more than mild in degree. Mild memory loss is contemplated by a 30 percent evaluation. In addition, subsequent treatment records such as that dated in May and November2014 show that his 

memory is normal or intact. Accordingly, the Board concludes that it is contemplated by the 50 percent rating. 

The impaired judgment reflected in the most recent VA examination report is also contemplated by his current evaluation. On the September 2010 VA examination it was noted that his judgment was such that he understood the outcome of his actions. Although impaired judgment was noted during his December 2012 VA examination, the evidence does not show that it occurs with any frequency. For example, subsequent VA treatment records, such as those date in May, June, and July 2013 and August and November 2014 show that he had at least fair and often good judgment and decisionmaking. Therefore, the Board finds that any judgment impairment more nearly approximates the criteria for the current 50 percent evaluation. 

In sum, since service connection became effective March 22, 2010, the preponderance of the evidence is against a finding that the Veteran's service-connected anxiety and depressive disorder result in deficiencies in most areas or that the affect the Veteran's ability to function independently, appropriately and effectively. The assigned GAF's between 55 and 63 and the opinion of the most recent VA examiner are consistent with the findings on the Veteran's psychiatric treatment records. Taken together, they show that the frequency, severity, and duration of the symptoms associated with the Veteran's anxiety and depressive disorder have been productive of no more than occupational and social impairment with reduced reliability and productivity. Therefore, the Board finds that since March 22, 2010, they have not met or more nearly approximated the criteria for a rating in excess of 50 percent. Accordingly, that rating is confirmed and continued, and the appeal for a higher rating is denied. 

The Right Ear Hearing Loss Disability

Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). For VA purposes, the severity of hearing impairment is determined by comparing 


audiometric test results in the conversational voice range (1000, 2000, 3000, and 4000 hertz) with the criteria set forth in 38 C.F.R. §§ 4.85 and 4.86. Those codes establish eleven levels of auditory acuity, from Level I for lesser degrees of hearing impairment through Level XI for greater degrees of hearing impairment. A level of auditory acuity is determined for each ear, and then those levels are combined to give an overall level of hearing impairment. 38 C.F.R. § 4.85. 
When, as here, impaired hearing is service connected in one ear only, the non-service-connected ear will be assigned a numerical designation of I. If, however, a veteran is totally deaf in his non-service- connected ear as well as his service-connected ear, compensation is payable as if both ears were service connected. 38 C.F.R. § 3.383. 

A review of the record discloses that the Veteran is not totally deaf in his nonservice-connected left ear. As noted above, recent VA audiologic examinations, show no worse than a puretone threshold level of 20 decibels in the left ear and a speech recognition ability of 100 percent. Therefore, he is assigned a numeric designation of I for hearing impairment in that ear. 

During the September 2010 VA audiometric testing, the pure tone thresholds, in the right ear, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
NA
15
10
30
60
LEFT






Speech audiometry revealed speech recognition ability of 94 percent in the right ear.




During the January 2013 VA audiometric testing, the pure tone thresholds, in the right ear, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
Not Applicable (NA)
10
20
30
55
LEFT






Speech audiometry, again, revealed speech recognition ability of 94 percent in the right ear.

In his right ear, VA audiologic evaluations performed in September 2010 and January 2013, show a puretone threshold average of no worse than 29 decibels (after rounding). His speech recognition score on each test was 94 percent. Such findings also translate to Level I hearing acuity in his service-connected right ear. 38 C.F.R. § 4.85, Table VI. 

When combined, the Level I hearing impairment in each ear, translates to an overall level of hearing impairment that is commensurate with the noncompensable rating currently in effect under 38 C.F.R. § 4.85, Table VII. Thus, the current rating is confirmed and continued, and the appeal is denied. 

Extraschedular Considerations

In arriving at these decisions, the Board has considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for the possible approval of extraschedular ratings for the Veteran's service-connected anxiety and depressive disorder and for his right ear hearing loss disability. 38 C.F.R. § 3.321(b)(1) (2015). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue 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. 38 C.F.R. § 3.321(b)(1). 

There is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating. Thun, 22 Vet. App. at 115. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran'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 claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.

The Board finds that neither the first nor second Thun element is satisfied here. The Veteran's service-connected anxiety and depressive disorder are manifested primarily by occupational and social a depressed mood, sleep impairment, irritability, decreased motivation, and social isolation. 38 C.F.R. § 4.130, Diagnostic Code 9413. Such manifestations are contemplated by General Rating Formula for Mental Disorders and reasonably describe the Veteran's disability picture. 38 C.F.R. § 4.130. The severity of the Veteran's service-connected right ear hearing disability is also contemplated by the criteria set forth in 38 C.F.R. § 4.85, Tables VI and VII. There is nothing exceptional or unusual about the Veteran's anxiety and depressive disorder or his right ear hearing loss disability, because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, he does not meet the criteria for referral to the Director of the VA Compensation and Pension Service.

With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. In particular the evidence of record does not show that his service-connected anxiety and depressive disorder or his service-connected right ear hearing loss disability has caused him to miss work or has resulted in any hospitalizations. Although he states that he quit his most recent job due to stress, the preponderance of the evidence is against a finding that a health treatment provider told him to stop working. As noted above, the most recent examiner reported that he could, generally function satisfactorily from a mental health standpoint in those occupations which did not require such interaction. The Board finds, therefore, that the Veteran's service-connected anxiety and depressive disorder and his right ear hearing loss disability, do not result in marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted.

TDIU

During his October 2014 video conference, the Veteran testified that his service-connected disabilities precluded him from performing all forms of substantially gainful employment. He noted that he had been found unemployable and was receiving Social Security Disability Insurance. Therefore, he maintained that a TDIU was warranted. However, after carefully considering that claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, that appeal will be denied. 

When a veteran's schedular rating is less than total, a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).

Any consideration as to whether the veteran is unemployable is a subjective one, that is, one that is based upon the veteran's actual level of industrial impairment, not merely the level of industrial impairment experienced by the average person. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Prec. Op. VA Gen. Counsel 75-91 (Summary of Precedent Opinions of the General Counsel, 57 Fed. Reg. 2314, 2317 (1992)). 

Advancing age and nonservice-connected disability may not be considered in the determination of whether a veteran is entitled to TDIU. 38 C.F.R. § 3.341(a), 4.19 (2009). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

A 60 percent combined disability rating is currently in effect for the following service-connected disorders: Anxiety and depressive disorder, evaluated as 50 percent disabling; tinnitus, evaluated as 10 percent disabling; and a right ear hearing loss disability, evaluated as noncompensable. That combined rating does not meet the criteria for a TDIU under 38 C.F.R. § 4.16(a). However, that does not end the inquiry. 

A TDIU may also be assigned on an extra-schedular basis for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Such cases are referred to the Director of the VA Compensation and Pension service with a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b).

In this case, the preponderance of the evidence is against a finding that the Veteran is unable to secure and follow substantially gainful occupation as a result of any or all of his service-connected disabilities. His right ear hearing loss disability is consistent with Level I hearing disability, and there are no findings that it significantly impacts his ability to work. The January 2013 VA examination shows that the Veteran's tinnitus has been aggravating at times, but that he has been able to function with it. 

Although the Veteran suggests that his psychiatric disability, alone, precludes employment, his GAF scores, ranging from 55 to 63, reflect only mild or moderate symptoms, or mild or moderate difficulty in occupational and social functioning. Scores reflecting only mild or moderate impairment may suggest difficulty with employment, but do not support a finding that the Veteran is unable to secure and follow substantially gainful employment due to his service-connected psychiatric disorder. Simply having only mild or moderate impairment does not equate to an inability to secure or follow substantially gainful occupation. 38 C.F.R. § 4.16(b). This is particularly true in light of the fact that the Veteran has extensive work experience since service, including that in management positions. Although he only reports a high school education, he did have a 20 year military career, and his Social Security records show post-service employment in jobs requiring various levels of personal interaction, e.g., a convenience store manager, a newspaper circulation manager, a security guard, a children's program coordinator, and a special education aide. More recent records, such as the report of his December 2012 VA psychiatric examination, show that the Veteran remains capable of performing work that does not require substantial interaction with other individuals. During that same examination, the Veteran stated that he was generally capable of completing occupational tasks with effort. 

The preponderance of the evidence of record is against a finding that the Veteran is unemployable due to his service-connected disability. Accordingly, the Veteran does not meet the criteria for referral to the Director of the VA Compensation and Pension Service for extraschedular consideration.

In arriving at this decision, the Board notes that Veteran has been found unemployable by the Social Security Administration. However, that unemployability is due to nonservice-connected disorders of ischemic heart disease and emphysema. While a finding of unemployability by the Social Security Administration is relevant evidence which needs to be weighed and evaluated, it is not dispositive of the issue. Each agency has its own law and regulations to consider in making such a determination. As such, a finding of unemployability by the Social Security Administration is not binding on the VA. See, e.g., Faust v. West, 13 Vet. App. 342, 356 (2000).


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ORDER

Service connection for a right knee disability is denied. 

Service connection for a cervical spine disorder is denied. 

Service connection for a lumbar spine disorder is denied. 

Service connection for a left ear hearing loss disability is denied. 

Service connection for a heart disorder is denied. 

Service connection for allergic rhinitis is denied. 

An initial rating in excess of 50 percent for anxiety and depressive disorder is denied. 

An initial compensable rating for a right ear hearing loss disability is denied. 

A total rating based on individual unemployability is denied.



______________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs