Citation Nr: 1751831 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 11-00 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to a higher initial rating for a service-connected acquired psychiatric disorder in excess of 10 percent prior to April 12, 2012 and in excess of 50 percent thereafter. REPRESENTATION Appellant represented by: William Herrin, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to June 1985. This matter comes on appeal before the Board of Veterans' Appeals (Board) from June 2010 and August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO). In April 2012, the Veteran testified at a videoconference hearing before the undersigned. The hearing transcript is of record. The appeal was remanded in April 2014 for additional development which included a requested for updated VA medical records and updated VA examinations and opinions. This was accomplished, and the Board may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The issue of entitlement to service connection for PTSD was later added to the appeal. Additionally, in August 2016, the RO granted an increased 50 percent rating for depressive disorder, not otherwise specified, effective April 12, 2012. The issue on appeal has been recharacterized to reflect the staged rating. FINDINGS OF FACT 1. Currently diagnosed hypertrophic changes in the anterior tibial tubercle of the bilateral knees are not shown to have been incurred in service. 2. The Veteran does not have current left ear hearing loss for VA purposes. 3. Symptoms of hearing loss were not both chronic in service and continuous since service separation, and sensorineural hearing loss did not manifest within one year after service separation. 4. Bilateral hearing loss is not etiologically related to service, to include hazardous noise exposure in service. 5. VA psychiatrists have diagnosed the Veteran with PTSD related to identified in-service stressors. PTSD is also shown to be related to service-connected depressive disorder and the Veteran's symptoms and impairment due to such disabilities cannot be differentiated. 6. For the entire rating period, psychiatric symptoms and impairment due to an service-connected acquired psychiatric disorder approximate a rating based on occupational and social impairment with reduced reliability and productivity due to symptoms such as depression, anxiety, sleep impairment, difficulty with concentration and memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective social relationships. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107, 5121 (West 2015); 38 C.F.R. §§ 3.102, 3.303 (2016). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107, 5121 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2016). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1101, 1131, 5107, 5121 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 4. Resolving reasonable doubt in the Veteran's favor, prior to April 12, 2012, the criteria the assignment of a higher initial 50 percent rating for an acquired psychiatric disorder have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434 (2016). 5. For the entire rating period, the criteria for a higher initial rating in excess of 50 percent for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434 (2016). 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, 3.156(a), 3.326(a) (2016); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the Veteran was provided adequate preadjudicatory notice addressing his initial claims for service connection. The Board finds that VA examinations and opinions of record are adequate and VA psychiatric examinations are sufficient for rating purposes. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 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). Sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 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. 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). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis and sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 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, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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"). Bilateral Knees The Veteran has currently diagnosed pathology in the bilateral knees. While an April 2010 VA examiner found, based on examination and x-ray, that the knees were normal, a more recent March 2015 VA rheumatology examination shows that soft tissue and osseous structures were unremarkable other than hypertrophic changes in the anterior tibial tubercle of both knees, very prominent on the right. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has current hypertrophic changes, or enlargement, of the tibial tubercle of the bilateral knees. He does not have current arthritis. Service treatment records show that the Veteran was treated for left patellar bursitis after a fall in November 1984, with no further clinical complaints. At separation in May 1985, the Veteran also noted that he had pain, off and on, in both knees. The weight of the evidence does not establish a nexus between the currently diagnosed knee disability and service, to include injury and complaints in service. April 2010 and March 2015 VA examiners indicated that the Veteran's current knee complaints and disability were less likely as not incurred in or aggravated in service. An April 2010 VA examiner found that the Veteran had normal knees on examination. X-rays showed no degenerative joint disease or degenerative changes, but the Veteran had ossification within the distal patellar ligament which was consistent with a remote, healed avulsion injury (Osgood-Schlatter). As a knee condition was not noted at service entrance, the Board finds that the Veteran's knees are presumed to have been sound at service entrance. Additionally, both April 2010 and March 2015 VA examiners indicated that Osgood Schlatter's had resolved prior to service. The April 2010 VA examiner opined that the claimed knee disability was not caused by or a result of service. The March 2015 VA examiner opined that that the Veteran's disability would not have been caused by service, and the current evidence consistent with the tibial tuberosity of both legs shows that the disability was less likely as not aggravated by his military service. He noted the Veteran's in-service treatment for left patellar bursitis and reported on and off knee pain at separation, but reasoned that bursitis had resolved, and no knee condition was identified on post-service physical examinations. The Board finds that the VA opinions contained sufficient rational and are probative. While the Veteran has provided testimony indicating that he has had knee pain since service, the Board finds that he is not competent to relate a disability as complex as the assessed hypertrophic changes in the anterior tibial tubercle of both knees, identified only recently on x-rays, to an injury or symptoms in service. He has not otherwise submitted medical evidence of a nexus between his current disability and service. For these reasons, the Board finds that the weight of the evidence is against the Veteran's claim for service connection. Because the preponderance of the evidence is against the claim for service connection, the claim must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2016). Bilateral Hearing Loss 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). In Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the Court indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability even where hearing was within normal limits on audiometric testing at separation from service. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (interpreting that 38 C.F.R. § 3.385 does "not serve as a bar to service connection" where there is an absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley, 5 Vet. App. 155. After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds that bilateral hearing loss was not incurred in service. The Veteran contends that he has bilateral hearing loss due to exposure to weapons fire during training in service. The Veteran's DD 2014 shows that he had a primary specialty as an infantryman, and Board finds that the Veteran's hearing testimony with regard to his noise exposure from weapons fire during training is credible. Thus, the Board finds that the Veteran had hazardous noise exposure in service. The Veteran has currently a diagnosed right ear hearing loss disability, but does not have a left ear hearing loss "disability" that meets the criteria of 38 C.F.R. § 3.385. On the authorized VA audiological evaluation in April 2010, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 35 30 LEFT 25 25 35 25 20 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 98 in the left ear. On the authorized VA audiological evaluation in March 2015, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 25 20 LEFT 25 25 35 25 20 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 100 in the left ear. The Board finds that the April 2010 VA examination identified a right ear hearing loss disability pursuant to the provisions of 38 C.F.R. § 3.385, but not left ear hearing loss. Neither right nor left ear hearing loss was shown during the March 2015 VA examination. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. § 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). Because a current diagnosis of left ear hearing loss has not been established, the Board finds that service connection is not warranted for left ear hearing loss. The Board will next address whether right ear hearing loss, diagnosed in April 2010, was incurred in service. The Board finds that symptoms of right ear hearing loss were not both chronic in service and continuous since service separation, and sensorineural hearing loss did not manifest within one year after service separation. Service treatment records do not reflect any complaints related to hearing loss in service. An October 1984 clinical treatment note identified impacted cerumen in both ear canals, with subsequent removal of the ear wax. The Veteran denied having hearing loss on a May 1985 report of medical history completed at separation. On the authorized enlistment audiological evaluation in June 1982, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 15 10 LEFT 35 35 50 45 50 On the authorized separation audiological evaluation in May 1985, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 0 LEFT 5 5 5 5 10 While the Veteran had elevated hearing thresholds in the left ear at enlistment and he had a decrease in pure tone threshold levels, April 2010 and March 2015 VA examiners found that this discrepancy did not repeat in subsequent ear examinations suggesting that it was due to poor earphone placement, a misunderstanding of test instructions, a cerumen plug in the ear canal, or transient middle ear dysfunction, and the Board finds that this assessment is consistent with the Veteran's October 1984 treatment for impacted cerumen in service. Moreover, the Board finds that a right ear hearing loss disability was not identified at service entrance, and no increase in hearing threshold levels were indicated in service. Service treatment records also included an enlistment and retention examination for the Army Reserves conducted post-service. On the authorized audiological evaluation in October 1986, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 5 10 LEFT 20 20 15 15 15 On the authorized audiological evaluation in May 1990, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT NR 5 10 0 20 LEFT NR 10 35 10 20 While the Veteran indicated that he noticed some hearing loss symptoms beginning in service, and that he had a drastic increase in hearing threshold levels recorded at service separation, this appears inconsistent with findings in service treatment records, which show no increase in hearing threshold levels in service, and instead indicate that that the Veteran's hearing improved after removal of impacted cerumen in the ears in service. Additionally, inconsistent with the Veteran's report, he denied hearing loss on a report of medical history completed at service separation, despite reporting the presence of other physical symptoms. The Board finds, in this case, that findings from service treatment records and statements made contemporaneous to service about the presence of hearing loss are more probative than the Veteran's more recent hearing testimony with regard to the chronicity of hearing loss symptoms in service. Moreover, October 1986 and May 1990 audiograms did not identify a hearing loss disability shortly after service separation, or a few years later. For these reasons, the Board finds that the weight of the evidence shows that symptoms of right ear hearing loss were not both chronic in service and continuous since service separation, and sensorineural hearing loss did not manifest within one year after service separation. The evidence of record does not otherwise establish a nexus between current right ear hearing loss and in-service noise exposure. An April 2010 VA examiner opined that military noise exposure did not cause hearing loss for the Veteran based on findings from in-service and post-service audiometric data. A March 2015 VA examiner also opined that that the Veteran's hearing loss was not caused by or a result of military noise exposure, noting that the Veteran's hearing was normal at separation, and that there was no significant shift in hearing in a post-service audiogram in October 1986. The VA examiner also reasoned that 30 years post-service, he had a flat hearing loss configuration, not indicative of noise exposure. The Board finds that the March 2015 VA examiner provided adequate rationale for his opinion, and finds that it is probative. Because the preponderance of the evidence is against the claim for service connection, the claim must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2016). PTSD In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." Id. If VA determines that a veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). No further development or corroborative evidence is required, provided that the claimed stressor is "consistent with the circumstances, conditions, or hardships of the veteran's service." Id. If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran's testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). The Veteran is currently service-connected for depressive disorder, which was treated in service. The Board notes that service connection for one psychiatric disability is generally presumed to encompass benefits based on other psychiatric diagnoses, particularly where separate signs and symptoms have not been attributed to the different psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); see also 38 C.F.R. § 3.102 (2016); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so.) Nonetheless, the Veteran has submitted a separate claim for PTSD, and the RO denied that claim based on an inability to corroborate the Veteran's stressors. After a review of the evidence, the Board finds, resolving reasonable doubt in favor of the Veteran, that service connection for PTSD is warranted. The Veteran has identified stressors related to being trapped for hours while on patrol in the demilitarized zone in South Korea, and related to witnessing a fellow soldier being murdered in his car while he was stationed at Fort Ord, California. With regard to the second stressor, the Veteran provided hearing testimony, indicating that he had just left the vehicle when he heard a gunshot. He ran back to the car, and his friend died in his arms. The Board finds that the Veteran has a current diagnosis of PTSD. VA treatment records show that VA psychiatrists have diagnosed the Veteran with PTSD related to his identified in-service stressors and he has been receiving treatment for PTSD and depression at VA since 2010. The Veteran has identified in-service stressors related to his service in Korea, and related to witnessing the death of a fellow soldier in California. The stressors were described in a September 2010 diagnosis of PTSD and were, thus, verified by a VA psychiatrist to be of sufficient gravity to support a diagnosis of PTSD. A June 2011 VA psychiatrist indicated that the Veteran was service-connected for major depression, but noted that he was also diagnosed with PTSD after a full psychiatric evaluation in September 2010. The Veteran was assessed with probable PTSD and major depressive disorder, with the psychiatrist noting that some of the trauma may not meet the severity criteria for PTSD, but the death of his friend did seem severe. A December 2010 mental health treatment note, indicated, after a discussion of the Veteran's stressors, that these incidents were most likely the source of his depression. A July 2014 psychiatric evaluation provided an updated DSM-V diagnosis of PTSD. While development was not conducted to attempt to corroborate the identified stressors through official sources, the Veteran's account of the claimed in-service stressors appears to be credible, consistent with the circumstances of the Veteran's service, and stressors outside of service have not been identified by the record. 38 U.S.C.A. § 1154 (a) (West 2015). Resolving reasonable doubt in his favor on this question, an identified in-service stressor has been sufficiently corroborated by evidence of record. Moreover, in this case, the Veteran's diagnoses of PTSD and service-connected depressive disorder appear to be intertwined, and the Veteran's symptoms and impairment due to such disabilities cannot be differentiated. In sum, VA psychiatrists has provided DSM-IV diagnoses of PTSD and have related it to the Veteran's in-service stressors and his PTSD diagnosis is shown to be related to already service-connected depressive disorder. See 38 C.F.R. § 3.304 (f)(3). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for PTSD is warranted. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102 (2016) Increased Rating for an Acquired Psychiatric Disorder Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran has challenged the initial rating assigned for an acquired psychiatric disorder by seeking appellate review. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating); see also Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992) (discussing aspects of a claim for increased disability rating). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. Fenderson, 12 Vet. App. at 126. Based on the evidence of record, a staged rating is not warranted for PTSD. While the RO assigned an initial staged rating for the service-connected acquired psychiatric disorder, it is not factually ascertainable, based on the evidence of record, that an increase in disability had occurred during any period on appeal, and instead, the weight of the evidence shows that the higher assigned 50 percent rating is warranted for the entire appeal period. The Veteran is in receipt of a 10 rating under DC 9434 for an acquired psychiatric disorder, to include depressive disorder and PTSD, prior to April 12, 2012, and a 50 percent rating thereafter. The next higher 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). 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. A 70 percent disability rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. A 100 percent disability rating is assigned total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name. In evaluating psychiatric disorders, the Board is mindful that the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013). "A veteran may only qualify for a given rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Further, "§ 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." VA examinations and clinical evaluations reflect assignment of various Global Assessment of Functioning (GAF) scores. The GAF is a scale reflecting the subject's psychological, social, and occupational functioning. Richard v. Brown, 9 Vet. App. 266, 267 (1997). GAF scores from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. A GAF 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 (few friends, conflicts with peers or co-workers). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work). See American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV) (4th Ed.). The Veteran contends that a higher initial rating is warranted for his psychiatric disorder. The Board has granted service connection for PTSD in addition to service-connected depressive disorder and finds that the evidence of record does not differentiate the symptoms and impairment due to each diagnosis. After a review of all the evidence, lay and medical, for the entire rating period, the Board finds that the Veteran's psychiatric symptoms and the severity of such approximate a higher initial 50 percent rating based on occupational and social impairment with reduced reliability and productivity due to symptoms such as depression, anxiety, chronic sleep impairment, difficulty with concentration and memory, disturbances of motivation and mood; and difficulty in establishing and maintaining effective social relationships. An April 2010 VA examination indicated that the Veteran had good relationships with family members but little interest in outside relationships. The Veteran was married and lived with his wife and his mother. He identified having a good relationship with his mother, siblings, wife, children, and grandchildren. He denied problems with getting along with co-workers and supervisors at work. The Veteran enjoyed doing activities with his wife. He reported having no friends in Ohio, or in Houston. The Veteran was employed, but did note a history of having several different jobs, which he quit because he could not keep up, with the longest during holding a job being one-and-a-half years. During examination, the Veteran reported symptoms of depression, decreased appetite, sleep impairment, and problems with concentration. He was appropriately groomed, speech was unremarkable, and thought processes were logical and goal-directed. There was no evidence of hallucinations or delusions and the Veteran denied suicidal ideation. Judgement and insight were fair. He was diagnosed with depressive disorder, not otherwise specified, with associated anxiety symptoms. The Veteran was assessed with a GAF score of 68, representing mild symptoms. VA treatment records dated from 2010 to 2014 show that the Veteran was treated for severe depression after the loss of his mother, and he was noted to be sleep-deprived. He had a GAF of 55 in September 2010, indicating moderate symptoms or moderate social and occupational impairment. He continued to receive treatment at VA for PTSD and depression and was assessed with a GAF scores ranging from 52 to 55 in 2010 and 2011. The Board finds that a higher level of occupational and social impairment, based on moderate psychiatric symptoms was shown by VA treatment records very shortly after the date of the April 2010 VA examination. While the RO assigned a higher 50 percent rating from the date of an April 2012 Board hearing, noting that the Veteran described an increase in symptoms during his Board hearing testimony, the Board finds that during an April 2012 hearing, the Veteran identified a history of symptoms, greater in severity than what he was rated during the course of the entire rating period. He also identified medication management and group therapy treatment for his psychiatric disorder, supported by findings from VA treatment records. An updated May 2015 VA examination identified a diagnosis of unspecified depressive disorder which was stated to result in occupational and social impairment with reduced reliability and productivity due to symptoms of depressed mood, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, and disturbances of motivation and mood. The Veteran was married and had been married for 26 years. He was working but had a history of job instability. The Veteran had contact with family but predominantly interacted with his wife. He described several symptoms of depression, indicating that he could not enjoy things, that he did not like being around people, and had a lack of interest in activities. He also reported sleep impairment, and problems with concentration or memory. A mental status examination shows that the Veteran was appropriately groomed. His thoughts were logical and goal directed with no evidence of hallucinations or delusions. His speech was coherent with normal rate and volume. He did not report suicidal ideation, and knowledge and judgement were good. Based on the evidence of record, the Board finds that for the entire appeal period, the evidence of record shows that the Veteran's depression and PTSD result in occupational and social impairment with reduced reliability and productivity due psychiatric symptoms such that an initial 50 percent rating is warranted for the entire rating period, to include prior to April 12, 2012. While an initial VA examination in April 2010 identified mild symptoms and mild occupational and social impairment due to the Veteran's psychiatric disorder, contemporaneous medical evidence provided by VA treatment records and Board hearing testimony identify symptoms and impairment that is moderate in degree. The Board finds, therefore, that is it is not factually ascertainable, based on the evidence of record, that an increase in disability had occurred during any period on appeal, and instead, the weight of the evidence shows that the higher assigned 50 percent rating is warranted for the entire appeal period. The Board has reviewed all the evidence of record and finds that the evidence has not met or more nearly approximated the criteria for a higher 70 percent rating at any time during the rating period. While the Veteran was noted to have some difficulties with work due to a combination of external factors, such as difficulty with finding jobs, and layoffs in addition to his depressive symptoms, he is not shown to have deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood as indicated for a higher 70 percent rating, and his symptoms and his overall disability picture more closely approximates the criteria as described for a 50 percent rating. Evidence of record shows that the Veteran has identified largely positive family relationships, and has no evidence of impaired judgement or thinking on VA examinations. Moreover, his psychiatric symptoms are not of a similar to and are not of a similar severity to symptoms described for a 70 percent rating. For these reasons, an acquired psychiatric disorder does not more nearly approximate the rating criteria for a 70 percent evaluation under DC 9434. For these reasons, the Board finds that for the entire rating period, the criteria for a higher initial 70 percent rating have not been met or more nearly approximated. Because the preponderance of the evidence is against the appeal for an initial rating in excess of 50 percent for an acquired psychiatric disorder, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER Service connection for a bilateral knee disability is denied. Service connection for bilateral hearing loss is denied. Service connection for PTSD is granted. Prior to April 12, 2012, a higher initial 50 percent rating is granted for an acquired psychiatric disorder, to include depressive disorder and PTSD. For the entire rating period, an initial rating in excess of 50 percent for an acquired psychiatric disorder is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs