Citation Nr: 1606103 Decision Date: 02/18/16 Archive Date: 03/01/16 DOCKET NO. 10-44 235A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial schedular rating higher than 30 percent for posttraumatic stress disorder (PTSD) with depressive disorder and alcohol abuse, and to a schedular rating higher than 70 percent since February 3, 2012. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for obstructive sleep apnea. 5. Entitlement to service connection for residuals of a traumatic brain injury. 6. Entitlement to an initial rating higher than 10 percent for a service-connected low back disability. 7. Entitlement to an extraschedular rating for a psychiatric disorder. 8. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Christopher Loiacono, Accredited Agent ATTORNEY FOR THE BOARD J. Honan, Associate Counsel INTRODUCTION The Veteran had active service from May 2004 to October 2004 and from February 2006 to May 2007, including service in Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2009, November 2010, February 2012, and July 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The November 2009 rating decision granted service connection for PTSD and assigned a 30 percent rating, effective March 23, 2009. The November 2009 decision also denied service connection for a low back disability, sleep apnea, hearing loss, a right knee disability, and residuals of head trauma. The November 2010 rating decision granted service connection for lumbar spine degenerative disc disease and assigned a 10 percent rating, effective March 23, 2009. The February 2012 rating decision increased the Veteran's rating for service-connected PTSD with depressive disorder and alcohol abuse to 70 percent, effective February 3, 2012, and continued the denial of service connection for bilateral hearing loss. The July 2012 rating decision denied entitlement to a TDIU. The Board notes that the issues of entitlement to service connection for bilateral hearing loss and entitlement to a higher rating for PTSD with depressive disorder and alcohol abuse were not listed on either of the VA Form 8 Certifications of Appeal on record. However, the Certification of Appeal does not confer or deprive the Board of jurisdiction of issues, and is used for administrative purposes only. 38 C.F.R. § 19.35. As the Veteran timely filed a notice of disagreement and substantive appeal concerning both issues, and as they were addressed by a Statement of the Case, the Board now holds jurisdiction over them. The issues of entitlement to an initial rating higher than 10 percent for a low back disability, entitlement to service connection for residuals of a traumatic brain injury, a right knee disability, and obstructive sleep apnea, and entitlement to a TDIU and to an extraschedular rating for a psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Prior to September 22, 2009, the evidence shows that the Veteran's service-connected psychiatric disorder was manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms of depression, anxiety, sleep impairment, and mild memory loss. 2. From September 22, 2009 to February 3, 2012, the evidence shows that the Veteran's service-connected psychiatric disorder was manifested by occupational and social impairment with deficiencies in most areas including work, school, family relations, and mood, but was not manifested by total occupational and social impairment. 3. Since February 3, 2012, the evidence shows that the Veteran's service-connected psychiatric disorder has not been manifested by total occupational and social impairment. 4. The Veteran is not shown to have a current bilateral hearing loss disability as defined by VA regulation. CONCLUSIONS OF LAW 1. Prior to September 22, 2009, the criteria for an initial schedular rating higher than 30 percent for a psychiatric disorder were not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411(2015). 2. From September 22, 2009 to February 3, 2012, the criteria for a schedular rating of 70 percent, but no higher, for a psychiatric disorder were met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2015). 3. Since February 3, 2012, the criteria for a schedular rating higher than 70 percent for a psychiatric disorder have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411(2015). 4. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) redefined VA's duty to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The Veteran's appeal for an initial schedular rating higher than 30 percent for a psychiatric disorder, and to a schedular rating higher than 70 percent thereafter, arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to the Veteran's service connection claim for bilateral hearing loss, VA's notice requirements were met through a standard March 2009 letter. The Board finds that there has been compliance with VA's duty to assist. The record in this case includes service treatment records, VA treatment records, private medical records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow it to adjudicate the appeal, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). The Veteran has not identified any outstanding records pertinent to the appeal. Regarding the Veteran's rating claim for his psychiatric disorder, he was afforded pertinent VA psychiatric examinations in June 2009, September 2009, and September 2012. Each of these examination reports reflects an accurate medical history, with the Veteran's history and complaints recorded and with detailed findings included. As such, the Board finds that the examinations are adequate to adjudicate the rating claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As to the Veteran's service connection claim for bilateral hearing loss, he was provided a pertinent VA audiologic examination in September 2009. As this VA examination report is based on the Veteran's medical history and describes the disability in sufficient detail so that the Board's decision is a fully informed one, the examination is adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As VA's duties to notify and assist have been met with respect to the above issues, the Board may proceed to adjudicate the appeal as to those issues. Service Connection - Bilateral Hearing Loss In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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 disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Veteran asserts that he is entitled to service connection for bilateral hearing loss; however, he is not shown to have a bilateral hearing loss disability as defined by VA regulation. Under 38 C.F.R. § 3.385, impaired hearing is not considered to be a disability unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater, or where the auditory thresholds for at least three of the above frequencies are 26 decibels or greater, or where speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The existence of a current disability is the cornerstone of a claim for VA disability compensation; consequently, failure to establish a current disability results in the denial of a claim. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997). Specifically, a claimant must have a disability in order to be considered for service connection. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The Board notes that hearing loss is referenced in the Veteran's VA treatment records beginning in January 2010, based upon September 2009 VA audiologic examination results. See, e.g., February 2014 VA primary care note. However, those examination results, while evidencing some degree of hearing loss, do not meet the specific criteria for a hearing loss disability as defined by VA regulation under 38 C.F.R. § 3.385. The Veteran's September 2009 audiometric testing did not reflect an auditory threshold of 40 decibels or greater at any of the prescribed frequencies for either ear, nor was there an auditory threshold of 26 decibels or greater shown for at least three of the above-prescribed frequencies for either ear. The Veteran's speech recognition scores also did not fall below 94 percent for either ear. As a result, the Veteran is not currently shown to have a hearing loss disability for VA purposes. The Veteran has not reported, and the record does not otherwise indicate, that his hearing has worsened since his last VA audiologic examination. Therefore, reexamination is not warranted at this time. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). Because the evidence fails to establish a current diagnosis of a hearing loss disability as defined by VA regulation, the Veteran's claim for this condition does not satisfy the first element required for service connection, and the claim must be denied. Rating Principles - Psychiatric Disorder Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of a veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In November 2009, the RO granted service connection for PTSD with depressive disorder and alcohol abuse, and assigned a 30 percent rating pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, effective March 23, 2009. The Veteran contends that he is entitled to an initial rating in excess of 30 percent. PTSD with depressive disorder and alcohol abuse is evaluated under a General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. A 30 percent rating is warranted where there is an 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, or mild memory loss (such as forgetting names, directions, recent events). Id. 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where the disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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 and place; memory loss for names of close relatives, own occupation, or own name. The Global Assessment of Functioning (GAF) is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score of 41-50 is assigned where there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. A GAF score of 51 to 60 is indicative of moderate symptoms (flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with peers or co-workers). Id. Ratings of psychiatric disabilities shall be assigned 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. Further, ratings are assigned according to the manifestation of particular symptoms. However, the various symptoms listed after the terms "occupational and social impairment with deficiencies in most areas" and "total occupational and social impairment" in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Initial Rating (March 23, 2009 to February 3, 2012) From the beginning of the appeal period until September 22, 2009, the evidence shows that the Veteran's psychiatric disorder was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, though generally functioning satisfactorily, with routine behavior, self-care, and conversation normal. A February 2009 VA speech pathology consultation report noted that the Veteran reported memory problems related to names, numbers, dates, and appointments. The Veteran stated that the memory problems were not such that they significantly interfered with his ability to function at home or at school, but they were noticeable to him. This reported memory impairment corresponds with the examples set forth under the criteria for a 30 percent rating (i.e. forgetting names, directions, and recent events). In an April 2009 statement, the Veteran discussed his paranoia, nightmares, sleeplessness, increasing social isolation, and emotional numbness experienced during and since his return from Iraq. According to a June 2009 initial VA PTSD examination, the Veteran reported that he was in the process of getting divorced. He reported nightmares, flashbacks, sleeplessness, and extreme hypervigilance. On objective examination, the Veteran was cooperative, his mood and affect were appropriate, and his speech was normal. There was no evidence of perceptual impairment or a thought disorder. The Veteran's memory and concentration were intact, he denied suicidal and homicidal ideation, and he was oriented to time, person, and place. The examiner summarized that the Veteran was "exhibiting moderate symptoms of chronic [PTSD] that appear to be primarily affecting his ability to engage in spontaneous socialization, although they do not affect his ability to maintain employment or go to school." The examiner assigned a GAF score of 58, and determined that the Veteran's psychiatric symptoms resulted in social impairment with occasional decreases in ability to socialize and ability to maintain interpersonal relationships as a consequence of his increasing isolation his decreasing use of recreational and leisure time his heightened arousal and impaired sleep along with mood swings. The examiner found that there was no occupational impairment that resulted from the Veteran's current symptoms. To satisfy the criteria for the next higher (i.e. 50 percent rating), the Veteran would need to show a degree of functional impairment generally on par with such symptoms as stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of both short term and long term memory (i.e. retaining only highly-learned material), and difficulty in establishing and maintaining effective work and social relationships. These symptoms are only provided as examples to indicate the overall level of impairment that warrants a 50 percent rating. From March 2009 to August 2009, the Veteran's mental health treatment records do not demonstrate the level of impairment contemplated by the 50 percent rating criteria. The June 2009 VA examiner found that, despite some moderate symptoms causing occasional decreases in the Veteran's ability to socialize, these symptoms did not affect his ability to maintain employment or go to school. In a February 2009 treatment note, the Veteran reported that while his memory difficulties were noticeable to himself, they did not significantly interfere with his ability to function at home or at school. The Veteran's GAF score of 58 on his initial VA psychiatric examination reflects only moderate symptoms or moderate difficulty in social, occupational, or school functioning. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). However, beginning in September 2009, the evidence demonstrates an increase in the severity of the Veteran's psychiatric symptoms. A VA PTSD examination report dated September 22, 2009 notes that the Veteran reported an increase in the intensity of some of his symptoms since the last examination three months prior. The examiner found the Veteran to be alert and oriented, with normal speech and thought processes. No psychotic symptoms were evidenced or endorsed. The examiner noted the Veteran's affect and mood to be anxious. The Veteran denied past or current suicidality; however, he did endorse passive suicidal thoughts in which he wished that he could just stay asleep and not relive his time in Iraq. The examiner assigned a GAF score of 51. While a GAF score of 51 to 60 is indicative of moderate symptoms, the Veteran's score is on the border of the 41 to 50 range, which denotes more serious symptoms (e.g., suicidal ideation, severe obsessional rituals) or any serious impairment in social, occupational, or school functioning. See Richard, 9 Vet. App. at 267, citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). According to a July 2011 mental health note, the Veteran could not sleep at night, as he was seeing faces of friends that died in combat and was hearing whispers. He reported feeling tense and scared, and experienced panic attacks three to four times per week. He also complained of irritability and sweating hands. He endorsed passive thoughts of death, but with no plan and no recent attempt. His affect was noted to be irritable and anxious. He was not found to have any current auditory or visual hallucinations, or any signs of delusions. The clinician offered the Veteran inpatient admission given the Veteran's increasing anxiety and recent passive suicidal thoughts, though the Veteran refused. A September 2011 VA mental health note reflects that the Veteran's had broken up with his girlfriend and was nearly homeless due to hurricane flooding. He stated that he continued to have nightmares and flashbacks, and reported feeling irritable and anxious most of the time, which affected his daily activities. He also reported that he isolated himself, and had been sleeping poorly. He drank four to five beers daily to "cope." His insight, judgment, and impulse control were deemed to be good. According to a September 2011 private psychiatric assessment by Dr. S.S., the Veteran's current GAF score was 65, with the lowest score during the past year being 45. The September 2011 assessment also concluded that the Veteran was markedly impaired in occupational functions such as ability to interact appropriately with the general public and ability to complete a normal work week without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. Given the increase in symptoms demonstrated by the evidence dated since September 22, 2009, the Board finds that an increased rating of 70 percent is warranted beginning at that time. However, the criteria for the maximum, 100 percent criteria were not satisfied during that period. The only evidence suggestive of symptomatology commensurate with the examples contemplated by the 100 percent rating criteria was contained in certain findings from the September 2011 private assessment. Dr. S.S. noted symptoms that included memory loss for names of close relatives, own occupation, or own name, as well as persistent delusions or hallucinations and disorientation to time and place. However, these extreme symptoms noted by Dr. S.S. are contradicted by the weight of the other evidence. The Veteran's claims file includes numerous VA mental health treatment notes dated since 2009 when the Veteran first sought psychiatric treatment. Particularly regarding the months leading up to the September 2011 private assessment, from April 2011 to September 2011, the Veteran was receiving monthly VA mental health treatment, with detailed treatment notes on file. During this time, while a July 2011 note recalled him seeing faces of friends that died in combat and hearing whispers in the context of describing nightmares and difficulty sleeping, he expressly denied delusions and hallucinations on several occasions (see, e.g., April 2011, September 2011 VA treatment records). The Veteran was never found to be disoriented to time or place according to his VA treatment records. Therefore, to the extent that the standalone, private assessment from September 2011 contains reports of extreme symptoms that are elsewhere unsupported by the remainder of the evidence, the Board finds that these September 2011 findings are not the most probative indicator of the Veteran's overall mental status during this period of the appeal. The Board assigns greater weight to the VA treatment records dated during the months leading up to the September 2011 assessment, which provide more consistent and detailed findings. The treatment records reflect that, while the severity of the Veteran's psychiatric disorder had worsened since 2009, it did not cause total occupational and total social impairment. Since February 3, 2012 In a February 2012 rating decision, the RO increased the Veteran's rating for service-connected PTSD with depressive disorder and alcohol abuse to 70 percent, effective February 3, 2012. During this period, the Veteran's psychiatric symptoms and associated social and occupational impairment have been encompassed by the 70 percent rating already in effect, and the evidence does not show that the maximum, 100 percent rating is warranted. The 70 percent rating currently assigned for the Veteran's psychiatric disorder contemplates serious occupational deficiencies. A June 2015 letter from the Veteran's employer states that while the Veteran needs to be accommodated in the workplace as a result of his disabilities (i.e. needed to be relocated from a high-traffic area to a more isolated area), he is nevertheless able to perform his job with the accommodations and remains currently employed. The 70 percent rating already in effect for the Veteran's psychiatric disorder supports the employer's statement that the Veteran required accommodations, but was able to perform his job with those accommodations. According to a June 2012 mental health note, the Veteran experienced multiple awakenings at night, with nightmares and night sweats. He reported one incident in which he awoke and punched his girlfriend. He also described bouts of anxiety, and feeling jittery. He denied suicidal or homicidal ideation, and denied psychotic symptoms. His affect was anxious, and his reliability and impulse control were fair. A September 2012 VA PTSD examination report concludes that the Veteran exhibits occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran reported that he was single as a result of his difficulties with anger, sleep disturbance, and tendency to isolate himself from others. He also reported that his poor sleep, difficulty concentrating, and overall difficulty being around others caused him to "barely get by" in school. The examination report noted that the Veteran stopped seeing his VA psychiatric in September 2011 due to his lack of housing following Hurricane Irene and his resulting inability to make VA appointments. The Veteran reported that he continued to use alcohol, but at a decreased level since his last VA examination. He also stated that he no longer used marijuana. The examiner noted symptoms that included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, inability to establish and maintain effective relationships, and suicidal ideation. An April 2013 mental health note reflects that the Veteran's affect was appropriate and his insight and judgment were fair. The Veteran did not report suicidal or homicidal ideation. He did report feeling stressed and depressed, with nightmares four to five times per week. He denied overt symptoms of depression. According to a June 2013 mental health progress note, the Veteran did not appear anxious or distressed, and was joking with his friend and working on his computer while in the waiting room. The Veteran denied suicidal and homicidal ideation. His affect was observed to be euthymic and his memory and reliability fair. His insight was deemed to be good and his judgment adequate. Although the symptoms listed under the rating criteria for a 100 percent rating are neither exhaustive nor required for such rating, they provide examples demonstrating impairment of cognitive functioning on a very high level. The evidence from this period of the appeal shows that the Veteran was unable to establish and maintain effective relationships, and was single as a result of his difficulties with anger, sleep disturbance, and tendency to isolate himself from others. His systems of poor sleep, difficulty concentrating, and overall difficulty being around others caused him to marginally continue with school. However, the evidence does not demonstrate that he experienced complete social and occupational impairment. According to a June 2013 mental health progress note, the Veteran was able to positively interact with his friend and work on his computer while waiting for his VA appointment. The Veteran consistently denied suicidal and homicidal ideation during this period. See, e.g., June 2012, April 2013 VA treatment notes. Despite the Veteran's challenges at work, for which accommodations were provided, according to the June 2015 letter from the Veteran's employer, the Veteran was nevertheless able to continue in his employment. This statement from the Veteran's employer is the most critical evidence in the Board's analysis of whether the Veteran experiences total occupational impairment. The Veteran's records do not form a picture of someone who is completely impaired and essentially unable to function in society. As such, the highest, 100 percent disability rating is not warranted since February 3, 2012. The Board notes that the issue of entitlement to an extraschedular rating for a psychiatric disorder is remanded, as discussed below. (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral hearing loss is denied. Prior to September 22, 2009, a schedular rating higher than 30 percent for a psychiatric disorder is denied. From September 22, 2009 to February 3, 2012, a schedular rating of 70 percent for a psychiatric disorder is granted. Since February 3, 2012, a schedular rating higher than 70 percent for a psychiatric disorder is denied. REMAND Initial Rating - Lumbar Spine Disability The current state of the Veteran's service-connected low back disability is unclear based on the record as it currently stands. The Veteran was last examined for this disability in February 2012, four years ago. The February 2012 VA examination report concluded that the Veteran did not experience flare-ups and that he had a full range of motion of his thoracolumbar spine, though pain was noted. The report also concluded that the Veteran did not experience any neurologic symptoms related to his low back disability. However, according to a March 2009 VA neurology progress note, the Veteran experienced back pain severe enough that he sometimes lost feeling in his legs and fell over. He reported these flare-ups as occurring irregularly, approximately twice a year. In an April 2009 statement, the Veteran reported receiving injections for his back on multiple occasions. He also reported that his back had given out on different occasions, and that he experienced constant back pain. According to a July 2009 VA Non-urgent clinic note, the Veteran was experienced severe back pain, characterized as of 8 out of 10 on a pain scale, and he reported radiating symptoms to his right leg. A January 2010 VA primary care note reflects that the Veteran's back pain medications were increased. According to an August 2011 private treatment note, range of motion testing revealed forward flexion limited to 60 degrees and extension limited to 2 degrees. The evidence contained in the Veteran's VA treatment records and private treatment records is inconsistent with the findings reported on his most recent VA examination. As that examination was conducted four years ago, and as the record indicates that there are symptoms that may have been overlooked and that the disability may have worsened since 2012, a contemporaneous VA examination is needed to assess the current nature, extent, and severity of this disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43, 186 (1995). On remand, the Veteran's VA treatment records should also be updated in order to assess the most current severity of his condition. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran should also be provided an opportunity to submit lay and private medical evidence related to the current severity of his low back disability. Service Connection - Traumatic Brain Injury While the Veteran suffered a head injury in service, it is unclear from the current record whether he continues to experience residuals of that in-service injury. According to a March 2009 VA treatment note, the Veteran had features consistent with a mild traumatic brain injury, but a comprehensive neuropsychological assessment deemed him to be a very low risk for persistent effects of a brain injury. This assessment was based on the Veteran's history of a single blow to the head in service with no immediate sequelae, and notes that his history was strongly suggestive of learning difficulties as well as alcohol abuse. While the Veteran attended a few sessions of speech therapy in 2009, he was discharged from speech therapy in July 2009 and his overall status was characterized as stable and improving. He was discharged because the goals of the therapy had been achieved. According to a September 2012 VA examination report, which was provided in the context of a psychological (PTSD) examination, the examiner noted that the Veteran had previously been diagnosed with a traumatic brain injury, and that the current (and only) symptoms that the Veteran reported as related to this injury were migraine headaches. To date, the Veteran has not been afforded a VA examination to specifically address his claimed residuals of traumatic brain injury. In order for the Board to adjudicate this appeal, it is critical for an examiner with appropriate medical expertise to provide a definitive medical finding as to whether the Veteran currently experiences residuals of a traumatic brain injury, or whether he experienced residuals of such injury at any time during the period on appeal. In forming this determination, the VA examiner should specifically address the Veteran's reported migraine headaches and provide an opinion as to whether they are a residual of his traumatic brain injury or whether they represent a separate condition with distinct etiology. Service Connection - Right Knee Disability and Obstructive Sleep Apnea The Veteran's service personnel records confirm that he served in the Southwest Asia Theater of Operations. He is seeking service connection for a combination of different health conditions, and while some of his symptoms have been attributed to known diagnoses, it is unclear whether there are additional components to these conditions that constitute a "qualifying chronic disability" resulting either from "[a]n undiagnosed illness" or "[a] medically unexplained chronic multisymptom illness." See 38 U.S.C.A. § 1117(a); see also 38 C.F.R. § 3.317 (a). This type of determination is a complex medical question outside the scope of the common knowledge and experience of a non-expert. See 75 Fed. Reg. 61995, 61996 (Oct. 7, 2010) (If a veteran has an illness other than chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome, it is solely a medical determination whether that illness qualifies under revised § 3.317(a)(2)(i)(B) as a "medically unexplained chronic multisymptom illness."); VBA Training Letter 10-01. As the Veteran has not yet been provided an examination to address his claimed right knee disability and obstructive sleep apnea, especially in light of the Gulf War Undiagnosed Illness provisions cited above, such examination must be conducted on remand. Additionally, since these claims have not yet been fully considered under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, the RO should provide the Veteran with appropriate notice of the evidence needed to establish service connection pursuant to these provisions. TDIU and Extraschedular Rating for Psychiatric Disorder The issue of entitlement to a TDIU is inextricably intertwined with the other issues currently on appeal. Harris v. Derwinski, 1 Vet. App. 180 (1991) (when a determination on one issue could have a significant impact on the outcome of another issue, such issues are inextricably intertwined); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009). Because the issues are inextricably intertwined and must be remanded for further development, the Board is unable to review the appeal of entitlement to a TDIU until the remaining issues have been adjudicated. Moreover, any development affecting the TDIU issue may have an impact on the complete picture of the Veteran's service-connected disability and the effect on his employability as it pertains to extraschedular consideration. See Brambley v. Principi, 17 Vet. App. 20, 24 (2003). Thus, the issue of entitlement to an extraschedular rating for a service-connected psychiatric disorder must also be remanded. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran appropriate notice pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes the criteria required for a claim asserted based on Persian Gulf War service under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. Allow the Veteran an appropriate amount of time to respond to this notification, a copy of which should be associated with the claims file. 2. Obtain any outstanding VA treatment records and associate them with the Veteran's claims file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed, of the current nature and severity of his back symptoms and any neurologic impairment, as well as any symptoms relating to any current manifestations of residuals of a traumatic brain injury, a right knee disability, or obstructive sleep apnea. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Provide the Veteran an opportunity to submit any outstanding, relevant private treatment records relating to treatment for his back and any associated neurologic impairment, as well as any treatment for residuals of a traumatic brain injury, a right knee disability, or obstructive sleep apnea. Provide the Veteran with the appropriate authorization for release form(s). For any outstanding private treatment records identified by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the claims file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran of such and provide him with an opportunity to submit those records directly. 5. After the above development has been completed, schedule the Veteran for a VA examination with an appropriate medical professional to determine the current nature and severity of his low back disability. The VA examiner should conduct range-of-motion testing and provide commentary regarding symptoms including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Any additional loss of motion with repetitive movement must be noted. The examiner should inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. The examiner should attempt to estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically. The examiner also should provide detailed findings regarding any neurologic impairment associated with the Veteran's back disability, including any symptoms radiating into the Veteran's left and right lower extremities. 6. Arrange for the Veteran to undergo a VA Gulf War examination to address his service connection claims for the following conditions: (1) traumatic brain injury, (2) a right knee disability, and (3) obstructive sleep apnea. The examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding his symptomatology, and undertake any indicated studies. Then, based on the results of the examination, the examiner is asked to address each of the following questions: (a) Please state whether the symptoms of each claimed condition are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? (b) Is the Veteran's disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis? (c) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern is either (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to a presumed environmental exposure experienced by the Veteran during service in Southwest Asia. (d) Is it at least as likely as not (i.e., at least equally probable) that any diagnosed disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? (e) If not directly related to service on the basis of questions (b)-(d), is any medical condition proximately due to, the result of, or caused by any service-connected disability(ies)? (f) If not caused by another medical condition, has any disorder been aggravated (made permanently worse or increased in severity) by any service-connected disability(ies)? If yes, was that increase in severity due to the natural progress of the disease? In answering all questions (a) to (f), please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. A report of the examination should be prepared and associated with the Veteran's VA claims file. Specifically regarding the Veteran's claimed traumatic brain injury, the examiner is asked to make a determination as to whether the Veteran's reported migraine headaches constitute a residual of such injury or whether they represent a separate condition with distinct etiology. 7. After all of the above actions are completed, accomplish any other development deemed appropriate in order to adjudicate the issues of entitlement to a TDIU and entitlement to an extraschedular rating for a psychiatric disorder. 8. Then, readjudicate the appeal. If any benefit is denied or is not granted in full, furnish the Veteran and his representative a supplemental statement of the case and, after allowing an appropriate period of time for response, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs