Citation Nr: 1627206 Decision Date: 07/07/16 Archive Date: 07/14/16 DOCKET NO. 12-18 398 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to a higher initial disability rating for the service-connected posttraumatic stress disorder (PTSD) with depression, in excess of 10 percent from April 15, 2010, and in excess of 50 percent from November 10, 2010. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 4. Whether new and material evidence has been received to reopen service connection for numbness/tingling in the arms and legs (also claimed as peripheral neuropathy). 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for a neck disability. 7. Entitlement to service connection for a low back disability. 8. Entitlement to service connection for a bilateral shoulder disability. REPRESENTATION The Veteran is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from September June 1970 to June 1973. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the RO in in Denver, Colorado, which, in pertinent part, granted service connection for PTSD with depression effective April 15, 2010 (date of claim for service connection for PTSD) and denied service connection for tinnitus, an April 2011 rating decision which granted a 50 percent disability rating for the service-connected PTSD from November 10, 2010 (creating a staged rating), and a January 2013 decision which denied TDIU. This case was previously before the Board in December 2015, where the Board remanded the issues of service connection for bilateral hearing loss, service connection for tinnitus, higher initial rating for PTSD, and TDIU for a Board videoconference hearing, and remanded the issues of new and material evidence to reopen service connection for peripheral neuropathy, and service connection for neck, back, and bilateral shoulder disabilities for the issuance of a statement of the case (SOC). As discussed below, the Veteran testified at a May 2016 Board hearing; however, the record does not reflect the appropriate SOC was issued. For this reason, the RO did not comply with the remand directives as to the service connection for peripheral neuropathy, neck, back, and bilateral shoulder disability issues on appeal, and these issues must once again be remanded for issuance of a statement of a SOC. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified from Denver, Colorado, at a May 2016 Board videoconference hearing before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. Regarding the May 2016 Board videoconference hearing, when conducting a hearing, a Veterans Law Judge should suggest that a claimant submit evidence on any issue material to substantiating a claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010); 38 C.F.R. § 3.103 (2015). The Veterans Law Judge also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Bryant, 23 Vet. App. at 497. In this case, during the May 2016 Board videoconference hearing, the Veterans Law Judge specifically noted the issues on appeal. The Veteran's representative also made specific contentions in support of the initial rating appeal, including the manifestation of symptoms of PTSD, and the service connection for tinnitus issue on appeal, including in-service acoustic trauma. During the Board hearing, the Veteran testified as to the symptoms and occupational and social impairment of the service-connected PTSD with depression, as well as to the symptoms and onset of tinnitus. Additionally there is competent medical evidence of record, including VA treatment records and VA examination reports from August 2010 and December 2010, that are adequate to rate the disabilities; therefore, there is no missing or overlooked evidence as to the issue on appeal. For these reasons, the Veterans Law Judge substantially complied with the requirements of 38 C.F.R. § 3.103 and Bryant at 496-97. As the Veteran disagreed with the initial rating assigned following service connection for PTSD, the Board has characterized the issue in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating appeals from claims for increased ratings for already service-connected disability). As a higher initial rating is available, and the Veteran is presumed to seek the maximum available benefit, the issue has remained viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum benefit under the law). The issues of service connection for bilateral hearing loss, a neck disability, a low back disability, a bilateral shoulder disability, and whether new and material evidence has been received to reopen service connection for numbness/tingling in the arms and legs are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma during service. 2. Symptoms of tinnitus have been continuous since service separation. 3. The Veteran currently has a disability of tinnitus. 4. For the entire initial rating period on appeal from April 15, 2010, the service-connected PTSD with depression has more nearly approximated occupational and social impairment with deficiencies in most areas due to such symptoms as: chronic sleep impairment, irritability, mild memory loss, intrusive thoughts, suicidal ideation, obsessive rituals, periods of violence, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. 5. For the entire initial rating period on appeal from April 15, 2010, the service-connected PTSD with depression was not characterized by total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication persistent delusions, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. 6. The Veteran is not rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of service-connected disabilities for any period. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2015). 2. Resolving reasonable doubt in favor of the Veteran, for the entire initial rating period on appeal from April 15, 2010, the criteria for an initial disability rating of 70 percent, but no higher, for PTSD have been met. 38 C.F.R. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2015). 3. The criteria for TDIU have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. As the Board is granting service connection for tinnitus, the issue is substantiated and there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. A January 2013 VCAA notice letter substantially satisfied the provisions of 38 U.S.C.A. § 5013(a). In this letter, the RO informed the Veteran of the evidence generally needed to support the TDIU claim, what actions were needed to undertake, how VA would assist in developing the claim, and the information required by Dingess. The notice letter specifically included notice that the evidence must show that service connected disabilities prevent one from performing the mental and/or physical tasks required to get or keep substantially gainful employment, as well as the combined rating percentages to be eligible for TDIU. As the PTSD rating issue on appeal arises from the Veteran's disagreement with the initial rating following the grant of service connection, no additional notice is required regarding this downstream element of the service connection claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and Court have similarly held regarding the downstream element of the initial rating that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability rating and effective date has been made, 38 U.S.C.A § 5103(a) notice is no longer required); 38 C.F.R. § 3159(b)(2) (no VCAA notice required because of filing of NOD). Thus, the Board concludes that VA satisfied its duties to notify the Veteran. Regarding the duty to assist in this case, the Veteran received VA examinations in August 2010 and December 2010. The VA examination reports are of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination reports reflect that the VA examiners reviewed the record, conducted an in-person examination, and rendered the requested opinions and rationale, including as to occupational and social impairment. All relevant documentation, including VA treatment records, has been secured, and all relevant facts have been developed; therefore, there remains no question as to the substantial completeness of the issue on appeal. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above. Service Connection for Tinnitus Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Tinnitus, as an organic disease of the nervous system, is a "chronic disease" under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). As the Board is granting presumptive service connection for tinnitus based on continuity of symptomatology since service under 38 C.F.R. § 3.303(b), the theories of direct service connection (38 C.F.R. § 3.303(d)) and presumptive service connection based on "chronic" symptoms in service (also 38 C.F.R. § 3.303(b)) or for hearing loss manifesting to a compensable degree within one year of service (38 C.F.R. §§ 3.307, 3.309) pursuant to the same benefit are rendered moot, and there remain no questions of law or fact as to the fully granted service connection issue; therefore, the direct service connection and presumptive service connection based on "chronic" symptoms in service theories or to 10 percent within one year of service will not be further discussed. See 38 U.S.C.A. § 7104 (West 2014) (stating that the Board decides actual case questions of law or fact). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A § 1154 (a) (West 2014); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2006); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-41 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that service connection is warranted for tinnitus resulting from in-service noise exposure. See May 2016 Board hearing transcript; see also August 2010 VA audiometric examination report. The Veteran has reported various loud noise exposures during service, including gunfire, engine noise, and mortars, and having tinnitus since service. Initially, the Board finds the Veteran has a current disability of tinnitus. An August 2010 VA audiometric examination report conveys the Veteran was diagnosed with tinnitus. In addition, the Veteran has credibly reported that he has tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Next, the Board finds that the Veteran experienced in-service acoustic trauma. As detailed above, the Veteran has reported exposure to acoustic trauma from exposure to various loud noises during service, including gunfire, engine noise, and mortars while performing as a helicopter mechanic. The Veteran is competent to report noise exposure in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). The Board finds the Veteran's account of in-service noise exposure to be credible and consistent with the places, types, and circumstances of his service. See DD Form 214 (reflecting "aircraft mechanic"); see also 38 U.S.C.A. § 1154(a) (West 2014). Accordingly, the Board finds that the Veteran was exposed to acoustic trauma during service. The Board also finds the evidence is at least in equipoise on the question of whether symptoms of tinnitus have been continuous since service. At the May 2016 Board hearing, the Veteran testified that tinnitus was proximately due to service and that symptoms of tinnitus, described as constant ringing, were intermittent during service. The Veteran also testified that tinnitus began in service due to gunfire, aircraft, and helicopter engine noise as a helicopter mechanic. As stated above, tinnitus is a condition capable of lay observation and diagnosis. See Charles, 16 Vet. App. at 374. Although the Veteran was not specifically diagnosed with a tinnitus disability during service, such is not required. See 38 C.F.R. § 3.303(d) (providing service connection may be granted for any disease diagnosed after service when the evidence establishes in-service occurrence). The evidence of record demonstrates in-service acoustic trauma associated with being a helicopter mechanic and the Veteran reported noticing tinnitus during service that continued since separation from service. The Veteran has asserted, at the May 2016 Board hearing and elsewhere, that tinnitus originated during active service and has continued to the present. The Veteran's statements are competent, credible and probative. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that, based on continuous post-service symptoms of tinnitus, presumptive service connection for tinnitus is warranted under 38 C.F.R. § 3.303(b) based on "continuous" post-service symptoms of tinnitus. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. As the criteria are met for presumptive service connection for tinnitus based on continuous post-service symptoms (38 C.F.R. § 3.303(b)), with the benefit being granted, all other theories of service connection are rendered moot, with no remaining questions of law or fact to be decided. 38 U.S.C.A. § 7104 (stating that the Board decides only actual case questions of law or fact). Initial Rating for PTSD Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2015). 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 (2015). 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 the veteran working or seeking work. 38 C.F.R. § 4.2 (2015). Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Pertinent in this case, the General Rating Formula provides that a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R § 4.130. A 70 percent rating will be assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech 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 inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular rating contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The use of the term "such as" in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). A GAF score of 21 - 30 indicates "Behavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends)." A GAF score of 31 - 40 indicates "Some impairment in reality testing or communication (e.g. speech is at times illogical, obscure or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school)." A GAF score of 41-50 indicates "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)." A GAF score of 51-60 indicates "Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." A GAF score of 61-70 indicates "Mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See Richard, 9 Vet. App at 267; Carpenter v. Brown 8 Vet. App. 240, 243 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the rating issue. The GAF score must be considered in light of the actual symptoms of a veteran's disorder as they reflect on the degree of occupational and social impairment, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126 (a) (2015). The Veteran contends generally that the service-connected PTSD with depression has been manifested by more severe symptoms and impairment than contemplated by the 10 percent disability rating assigned from April 15, 2010, and the 50 percent disability rating assigned from November 10, 2010. At the May 2016 Board hearing, the Veteran limited the appeal by explicitly stating that a 70 percent disability rating would constitute a full grant of the benefit sought on appeal. See May 2016 Board hearing transcript. At the May 2016 Board hearing, the Veteran also testified to experiencing panic attacks two to three times per week, depression, anxiety, suicidal ideation, unprovoked irritability, obsessive rituals, and periods of violence, including punching a door and a physical altercation with his fiancé. In a January 2011 statement, the Veteran wrote that PTSD manifested as various symptoms including suicidal ideation, obsessive rituals, impulse control, and periods of violence. Various Denver Vet Center treatment records reflect treatment for symptoms of PTSD, including nightmares, aggression, anger, decreased motivation, anxiety, and active participation in therapy. The Veteran underwent a VA examination in August 2010. The August 2010 VA examination report reflects the Veteran reported PTSD symptoms including anxiety, intrusive memories, irritability, depression, and suicidal thoughts. Upon examination, the VA examiner assessed slight irritability and impaired memory, and opined that PTSD with depression manifested as occupational and social impairment with mild symptoms, which may decrease work efficiency or ability to perform occupational tasks during periods of significant stress. A GAF score of 60 was assigned. The Veteran underwent another VA examination in December 2010. The December 2010 VA examination report reflects the Veteran reported suicidal thoughts, physical altercations, avoidance of crowds, hypervigilance, trouble sleeping, panic attacks three to four times per week, and denied homicidal thoughts or intent. Upon examination, the VA examiner assessed orientation to person, place, and time, maintenance of personal hygiene, mild memory loss, and logical speech patterns. The VA examiner did not discern delusions, hallucinations, obsessive or ritualistic behavior, or impaired impulse control. The VA examiner diagnosed PTSD and depression, and opined that symptoms of PTSD caused ongoing social and occupational impairment. A GAF score of 44 was assigned. A May 2013 PTSD questionnaire from the Denver Vet Center reflects the treating therapist, a licensed clinical social worker, wrote that symptoms of PTSD caused consistent difficulties with daily functioning, including persistent sleep problems. The May 2013 PTSD questionnaire reflects the licensed clinical social worker assessed suicidal ideation, suspiciousness, depression, anxiety, chronic sleep impairment, disturbances of mood and motivation, and mild memory loss, and opined that symptoms of PTSD manifested as occupational and social impairment with reduced reliability and productivity. After a review of the lay and medical evidence, the Board finds that, for the entire rating period on appeal from April 15, 2010, the evidence is at least in equipoise as to whether PTSD manifested as occupational and social impairment, with deficiencies in most areas, as described for a higher 70 percent rating under Diagnostic Code 9411. The Board finds that the serviced-connected PTSD has resulted in chronic sleep impairment, irritability, mild memory loss, intrusive thoughts, suicidal ideation, obsessive rituals, periods of violence, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Favorable evidence includes the August 2010 and December 2010 VA examination reports, as well as the May 2013 PTSD questionnaire from the Denver Vet Center and the May 2016 Board hearing transcript, which demonstrate suicidal ideation, irritability, obsessive rituals, memory loss, and periods of violence. The May 2013 Denver Vet Center licensed clinical social worker opined that PTSD with depression caused consistent difficulties with daily functioning. Accordingly, the Board finds that, for the initial rating period from April 15, 2010, the severity of the Veteran's occupational and social impairment and symptoms due to service-connected PTSD more nearly approximates the criteria a higher 70 percent disability rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The Board also finds that, for the entire initial rating period on appeal from April 15, 2010, the level of occupational and social impairment due to PTSD symptoms have not met or more nearly approximated the criteria for a higher 100 percent disability rating. See 38 C.F.R. § 4.130. For the rating period on appeal from April 15, 2010, the record does not indicate total occupational and social impairment, including due to such symptoms as gross impairment in thought processes or communication, persistent delusions, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, as required for a 100 percent disability rating under Diagnostic Code 9411. A review of the relevant lay and medical evidence, including the May 2016 Board hearing transcript, the August 2010 and December 2010 VA examination reports, and the May 2013 PTSD questionnaire from the Denver Vet Center does not reveal that the Veteran has experienced total occupational and social impairment for any period. The appeal for a higher initial disability rating for PTSD is fully granted in this Board decision. At the May 2016 Board hearing, the Veteran indicated that a 70 percent disability rating would fully satisfy the appeal as to this issue. See May 2016 Board Hearing transcript. Such a full grant of benefits sought, coupled with express indication that the rating percentage sought fully satisfies the appeal, is distinguished from a case where a veteran does not express satisfaction with a partial increased rating during an appeal that is less than the maximum schedular rating. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability). The Board finds the Veteran's waiver of the remaining aspects of the appeal for an initial rating was knowing and intelligent, was made with representation and in the presence of the representative, and was supported by the Veteran's testimony and the other evidence of record. Because a 70 percent disability rating for PTSD is granted from April 15, 2010, the Veteran had limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed an initial rating in excess of 70 percent. See 38 C.F.R. § 20.204 (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). For these reasons, any questions of a disability rating in excess of 70 percent for the initial rating period from April 15, 2010 are rendered moot, with no remaining questions of law or fact to decide. See 38 U.S.C.A. § 7104; see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). In summary, the Board finds that the service-connected PTSD with depression more closely approximates the criteria for a 70 percent rating under Diagnostic Code 9411 for the appeal period from April 15, 2010; therefore, the appeal is fully granted. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has also evaluated whether the initial rating for PTSD issue should be referred for consideration of an extraschedular rating for a psychiatric disability under 38 C.F.R. § 3.321(b)(1) (2015). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found 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 veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). With respect to the first prong of Thun, the evidence in this instant appeal does not establish such an exceptional disability picture as to render the schedular rating inadequate. A comparison between the level of severity and symptomatology and social and occupational impairment caused by the Veteran's PTSD with the schedular rating criteria found in 38 C.F.R. § 4.130, Diagnostic Code 9411, reflects that the diagnostic criteria reasonably describe the Veteran's disability level and symptomatology and its social and occupational impairment. The schedular rating criteria convey that compensable ratings will be assigned for PTSD which manifests by various levels of occupational and social impairment. The Veteran's disability picture has been shown to encompass occupational and social impairment due to symptoms that fall within the diagnostic criteria for a 70 percent rating for the relevant time period on appeal. The Veteran's service-connected PTSD was productive of no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to service-connected PTSD symptoms including sleep impairment, irritability, mild memory loss, intrusive thoughts, suicidal ideation, obsessive rituals, periods of violence, and as reflected by GAF scores of 60 and 44. All the impairment and symptoms are either explicitly part of the schedular rating criteria or are "like or similar to" examples or symptoms in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. In addition, the GAF scores, which are incorporated into the schedular rating criteria as part of the DSM-IV, assess the degree of overall occupational and social impairment or overall severity of symptoms. For these reasons, the Veteran's service-connected PTSD has not been shown to be productive of an exceptional disability picture; therefore, the Board determines that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.21(b)(1) is not warranted. Under Johnson v. McDonald 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. Entitlement to TDIU Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent rating. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a) (2014). The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). The Veteran seeks TDIU based on PTSD with depression rated as 70 percent disabling and tinnitus. Initially, the Board finds that the service-connected disabilities meet the regulatory schedular rating requirements of 38 C.F.R. § 4.16(a) for consideration of TDIU because service-connected PTSD is rated at 60 percent or more. A November 2010 letter reflects the Veteran was approved for VA vocational rehabilitation and employment services. An August 2010 VA examination report reflects the Veteran reported being recently unemployed, last working in May 2010 for the State of Colorado, and worked as a quality assurance manager for approximately two years until 2009. A December 2010 VA examination report reflects the Veteran reported receiving a master's degree and current employment with the State of Colorado. At the May 2016 Board hearing, the Veteran testified working as a project manager from 2009 to 2011, employment at an energy company (working 30 to 35 hours per week) from 2011 to 2013, and current employment with the city and county of Denver as an operations supervisor, to include supervising 10 employees while working 40 hours per week. The Veteran also testified to a current salary of $76,000. In a May 2016 VA Form 21-8940 the Veteran listed four years of college with no additional training. The Veteran's reported work history includes labor employment 40 hours per week from October 2010 to December 2010, earning $2,000 per month with 14 days lost due to the service-connected PTSD, employment as a contractor 30 hours per week from May 2011 to December 2011, earning $5,00 per month with 30 days lost due to PTSD, and employment as a supervisor from April 2012 to "present" 40 hours per week, earing $4,500 to $5,000 per month, with 30 days a year lost due to the service-connected PTSD. A May 2016 letter from the Veteran's former employer reflects the Veteran was dismissed from employment on May 12, 2016 for conduct including neglect of duty, carelessness in performance of duties and responsibilities, lying to superiors or falsifying records with respect to official duties. On review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against finding that the Veteran is rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of the service-connected disabilities. The degree of occupational impairment caused by the PTSD has been analyzed in the 70 percent rating appeal issue. The degree of occupational impairment is occupational and social impairment with deficiencies in most areas, which is less than "total" occupational impairment. Notably, no examiner has opined that the Veteran is unemployable due to any service-connected disability or disabilities. Significantly, the evidence of record, including the Veteran's self-reported work history, reflects gainful employment from 2011 forward. See May 2016 VA Form 21-8940 (reflecting the Veteran reported employment from 2010 forward, earning $2,000 to $5,000 per month). Further, at the December 2010 VA examination, the Veteran reported receiving a master's degree, and at the May 2016 Board hearing, the Veteran testified to a current salary of approximately $76,000. The salary earned for this period is significantly above the poverty threshold and reflects gainful employment. While a May 2016 letter from the Veteran's former employer reflects dismissal from employment on May 12, 2016, as well as self-reports of time missed from work for medical reasons, the evidence does not reflect that the amounts of work time lost have resulted in loss of income, or termination of employment. See May 2016 letter from City and County of Denver (reflecting dismissal from employment for conduct including lying to superiors or falsifying records with respect to official duties). During this period the Veteran was holding full-time substantially gainful employment, earning a salary far above the poverty threshold. For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria for TDIU have not been met or more nearly approximated for any period. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. An initial disability rating of 70 percent, but no higher, for PTSD with depression from April 15, 2010 is granted. TDIU is denied. REMAND Service Connection for Bilateral Hearing Loss The Veteran contends generally that the currently claimed bilateral hearing loss is due to service as a result of exposure to loud noise during active military service. See May 2016 Board hearing transcript. As discussed above, the Board has found that the Veteran was exposed to acoustic trauma during service. Additionally, the Board finds it is unclear from the evidence of record whether the Veteran has current bilateral hearing loss. The August 2010 VA examination report notes that the Veteran did not have current bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385 (2015). However, at the May 2016 Board hearing, the Veteran testified that his hearing acuity had diminished since the August 2010 VA examination. As there remains some question as to whether the Veteran has current hearing loss to be disabling by VA standards (38 C.F.R. § 3.385) and as to the etiology of the claimed bilateral hearing loss, the Board finds that an additional VA examination would be helpful. 38 C.F.R. § 3.159(c)(4) (2015); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Reopening Service Connection for Numbness/Tingling in Arms and Legs and Service Connection for Neck, Back, and Bilateral Shoulder Disabilities In June 2014, the Veteran submitted a timely notice of disagreement (NOD) to the April 2014 rating decision to deny reopening of service connection for numbness/tingling in the arms and legs, as well as service connection for neck, back, and bilateral shoulder disabilities. The Court has directed that, where a veteran has submitted a timely NOD with an adverse decision and the RO has not subsequently issued a SOC addressing the issues, the Board should remand the issues to the RO for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). As directed by the December 2015 Board remand, a SOC pertaining to these issues was required; however, to date no SOC has been issued as to these issues. See Stegall, 11 Vet. App. at 268. Accordingly, the issues of reopening of service connection for numbness/tingling in the arms and legs and service connection for neck, back, and bilateral shoulder disabilities are REMANDED for the following action: 1. Issue a SOC that addresses the issues of reopening service connection for numbness/tingling in the arms and legs, and service connection for neck, back, and bilateral shoulder disabilities. The Veteran should be given the appropriate opportunity to respond to the SOC. The RO should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of the issue following the issuance of the SOC unless the Veteran perfects the appeal. 2. Associate with the record all VA treatment records pertaining to the treatment of hearing loss that are not already of record. 3. Schedule a VA audiology examination to help ascertain the etiology of the claimed bilateral hearing loss. The relevant documents from the record should be provided to the VA audiologist and should be reviewed by the VA audiologist in connection with the examination. An interview of the Veteran regarding history, a physical examination, and all tests and studies required to respond to the following questions should be performed. Based on review of the appropriate records, the audiologist should offer an opinion on the following question: A) Does the Veteran have bilateral hearing loss for VA purposes? B) Is it as likely as not (i.e., to a probability of 50 percent or greater) that any hearing loss is causally or etiologically related to service, to include acoustic trauma during service? When providing the medical opinion, please assume the occurrence of acoustic trauma during service, and state the significance of such exposure. 4. After completing all indicated development, the RO should readjudicate the hearing loss issue in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and representative should be provided a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response before the case is returned 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 or Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs