Citation Nr: 1753955 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 13-28 226A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an effective date prior to July 23, 2012, for the award of service connection for posttraumatic stress disorder (PTSD) with depressive disorder. 2. Entitlement to an effective date, prior to March 30, 2012, for the assignment of a 10 percent rating for bilateral hearing loss. 3. Entitlement to an effective date prior to March 30, 2012, for the award of a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). 4. Entitlement to an effective date prior to March 30, 2012, for the award of Dependents' Educational Assistance (DEA). 5. Entitlement to an increased rating in excess of 30 percent from October 29, 2004, in excess of 50 percent from April 28, 2009, to October 19, 2016, and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD) with depressive disorder. 6. Entitlement to an increased rating in excess of 10 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD D. Ware, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from December 1955 to November 1959. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In June 2006, the Board denied entitlement to service connection for depression. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which, in December 2007, subsequently granted the parties' Joint Motion to vacate and remand the June 2006 Board decision. In May 2008, the Board remanded the claim for additional development consistent with the December 2007 Court Order. The Board granted entitlement to service connection for depression in August 2009 and remanded the issue of entitlement to service connection for PTSD. Pursuant to the August 2009 Board decision, the RO subsequently awarded service connection for depression at 10 percent, effective October 19, 1999, and at 30 percent, effective June 2001. In January 2012, the RO granted an increased rating for depression at 30 percent, effective October 19, 1999. Later, in May 2012, the Board granted an increased rating of 50 percent, but no higher, for service-connected depressive disorder from April 28, 2009; denied a rating in excess of 30 percent for service-connected depressive disorder prior to April 28, 2009; and remanded the issues of entitlement to service connection for PTSD and entitlement to TDIU for further development. In accordance with the May 2012 Board decision, the RO subsequently granted, in June 2012, an increased rating for service-connected depressive disorder at 50 percent, effective April 28, 2009. Finally, the Board notes that in June 2017, the RO granted entitlement to a 70 percent disability rating for the Veteran's service-connected PTSD with depressive disorder effective October 20, 2016. This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file contains documents that are either duplicative of the records in VBMS or irrelevant to the issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to an effective date prior to October 29, 2004, for the award of TDIU and an effective date prior to October 29, 2004, for the award of DEA is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran was diagnosed with PTSD in July 17, 2001; however, he filed an informal claim for PTSD on October 29, 2004. 2. In an April 1998 rating decision, the RO granted entitlement to service connection for bilateral hearing loss and assigned a noncompensable rating, effective February 26, 1997. The Veteran did not appeal the April 1998 rating decision and it became final. 3. In an August 1999 rating decision, the RO continued the noncompensable rating for bilateral hearing loss. The Veteran did not appeal the August 1999 rating decision and it became final. 4. The Veteran filed an informal claim for an increased disability rating for bilateral hearing loss on March 30, 2012. The record does not contain evidence of the Veteran having filed any claim for an increased disability rating prior to March 30, 2012. 5. From October 29, 2004, the Veteran meets the schedular criteria for TDIU and his service-connected disabilities prevented him from securing or following a substantially gainful occupation. 6. Entitlement to basic eligibility for DEA benefits arose on October 29, 2004. 7. The Veteran's PTSD has been productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 8. The Veteran's bilateral hearing loss has been manifested by no more than level II hearing in the right ear and level II hearing in the left ear. CONCLUSIONS OF LAW 1. The criteria for an effective date of October 29, 2004, for the award of service connection for PTSD have been met. 38 U.S.C.A. §§ 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.400 (2016). 2. The criteria for an effective date prior to March 30, 2012, for the assignment of a 10 percent rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.400 (2016). 3. The criteria for an effective date of October 29, 2004, for the award of TDIU have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.41, 3.400, 4.16, 4.19 (2016). 4. The criteria for an effective date of October 29, 2004, for the award of DEA have been met. 38 U.S.C.A. §§ 3501, 3510, 5110, 5113 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.400, 3.807, 21.3021 (2016). 5. The criteria for an increased rating of 70 percent for PTSD, from October 29, 2004, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.41, 4.126, 4.130, Diagnostic Code 9411 (2016). 6. The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Earlier Effective Date Generally, the effective date of an evaluation and award based on an original claim, a claim for increase, or a claim reopened after final disallowance shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The Board notes that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. Because VA received the Veteran's claims prior to March 24, 2015, the former regulations apply as cited below. When determining the effective date of an award of compensation benefits, the Board is required to review all the communications in the file that could be interpreted to be a claim for benefits. See Lalonde v. West, 12 Vet. App. 377, 380-381 (1999). A claim is defined as a formal or informal written communication requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p); 3.155. Any communication or action from a claimant indicating intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998)(holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). PTSD The Veteran asserts that he is entitled to an effective date prior to July 23, 2012, for the grant of service connection for PTSD. He contends that he was diagnosed with PTSD as early as July 17, 2001, and that he filed a formal claim for PTSD on October 29, 2004. The Veteran asserts that he is entitled to an effective date of July 17, 2001, the date he contends that his entitlement to service connection arose. See October 2013 Formal Notice of Appeal. The Board has thoroughly reviewed the evidence of record prior to July 23, 2012, to determine if the Veteran filed a claim, an informal claim, or expressed a written intent to file a claim for service connection for psychiatric disorder during that time. The record shows that the Veteran filed an informal claim for entitlement to service connection for PTSD on October 29, 2004. See October 2004 Third Party Correspondence. The record does not contain evidence of the Veteran having filed any claim for PTSD prior to October 29, 2004. Although the Board is sympathetic to the Veteran's contention that he should be awarded service connection effective as of July 17, 2001, the date that he contends entitlement to service connection arose, the Board is bound by the applicable statutes and regulations. 38 U.S.C.A. § 7104(c) (West 2014); 38 C.F.R. § 20.101(a) (2016). As noted above, a review of the claims file establishes that the Veteran filed an informal claim for compensation for PTSD on October 29, 2004. A VA examiner diagnosed PTSD on July 17, 2001, while noting that VA had not verified the Veteran's stressors. Later, upon VA confirmation of the Veteran's claimed stressors, a VA examiner diagnosed PTSD on July 23, 2012. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's July 2012 PTSD diagnosis supports his earlier July 2001 PTSD diagnosis. However, as previously noted, an effective date is assigned based on the date of claim or the date entitlement arose, whichever is later. Thus, the proper effective date is October 29, 2004, the date of claim. Accordingly, an effective date of October 29, 2004 is granted, and an earlier effective date is not warranted for the award of service connection for PTSD with depressive disorder. Bilateral Hearing Loss The Veteran contends that he is entitled to an effective date prior to March 30, 2012, for the award of a 10 percent rating for bilateral hearing loss. See July 2014 Notice of Disagreement. By way of history, in an April 1998 rating decision, the RO granted entitlement to service connection for bilateral hearing loss and assigned a noncompensable rating, effective February 26, 1997. The Veteran did not appeal the April 1998 rating decision and it became final. After the Veteran submitted additional VA treatment records and underwent a VA audiological examination in August 1999, the RO continued the noncompensable rating for bilateral hearing loss in an August 1999 rating decision. Again, the Veteran did not appeal the August 1999 rating decision and it became final. Additionally, the Board finds that VA treatment records submitted thereafter did not contain any audiological findings that demonstrated an increase in severity of the Veteran's bilateral hearing loss. Instead, VA audiometry results from August 2008 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 45 35 50 65 LEFT 30 40 40 50 60 Speech audiometry using the Maryland CNC test revealed speech recognition ability of 84 percent in the right ear and of 88 percent in the left ear. Given the average pure tone thresholds, 48.75 in the right ear and 47.5 in the left ear, the mechanical application of the above results compels a numeric designation of II in the right ear and II in the left ear under Table VI. When those values are applied to Table VII, it is apparent that a noncompensable rating was warranted under the provisions of 38 C.F.R. § 4.85. See Increased Rating - Bilateral Hearing Loss section below. The Board has thoroughly reviewed the evidence of record prior to March 30, 2012, to determine if the Veteran filed a claim, an informal claim, or expressed a written intent to file a claim for an increased rating for bilateral hearing loss during that time. The record shows that the Veteran filed an informal claim for an increased disability rating for bilateral hearing loss on March 30, 2012. See March 2012 Third Party Correspondence. The record does not contain evidence of the Veteran having filed any claim for an increased disability rating prior to March 30, 2012. The Board is bound by the applicable statutes and regulations. 38 U.S.C.A. § 7104(c); 38 C.F.R. § 20.101(a). As such, there is no legal basis for assignment of an effective date prior to March 30, 2012, for the award of an increased rating in excess of 10 percent for bilateral hearing loss. TDIU The grant of a TDIU is an award of increased disability compensation for purposes of assigning an effective date. Dalton v. Nicholson, 21 Vet. App. 23 (2007); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991). The assignment of effective dates for increased ratings is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400, as noted above. The Veteran contends that he has been retired since 1992 due to his hearing loss, tinnitus, depression, and PTSD. He asserts that the evidence of the record establishes that his service-connected disabilities had not only prevented him from maintaining any kind of substantial gainful employment, but had rendered him marginally and/or completely unemployable prior to March 30, 2012. He requested an effective date of October 19, 1999, the date of his original claim for entitlement to service connection for major depressive disorder. See March 2012 Third Party Correspondence; October 2013 Formal Notice of Appeal; September 2017 Correspondence. See also June 2012 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The record establishes that the Veteran filed a timely Notice of Disagreement with the October 2009 rating decision granting service connection for depressive disorder at an initial rating of 10 percent, effective October 19, 1999. See July 2010 Third Party Correspondence. The Board also notes that the Veteran raised the issue of entitlement to a TDIU in connection with his disability rating on March 30, 2012, and the Board remanded that matter in May 2012. In a July 2013 rating decision, the RO granted entitlement to TDIU effective March 30, 2012, on an extraschedular basis under 38 C.F.R. § 4.16(b). A total disability rating for compensation based on a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration shall be given to the Veteran's level of education, special training, and previous work experience. Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Initially, the Board concedes that the Veteran has indeed been unemployed since at least 1992. See November 1999 VA examination report; see also June 2012 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Board finds that from October 29, 2004, the Veteran meets the schedular requirement for the award of a TDIU, as he is service-connected for PTSD with depressive disorder, rated as 70 percent disabling from October 29, 2004, as granted herein; bilateral hearing loss, rated as 10 percent disabling from March 30, 2012; and tinnitus, rated as 10 percent disabling from February 26, 1997. In June 2008, the Veteran was provided a VA examination for mental disorders. He reported that when he was a math teacher in 1978 he had trouble and was '"going berserk in the classroom," because of his tinnitus. He explained that his ears and classroom noise '"literally drove [him] crazy."' He described the first three years as '"terrible"' and in 1983, he began working as a substitute teacher. Finally, in 1992, he stated that he '"couldn't take it anymore"' and quit. The examiner opined that although the Veteran was unemployed and contended that it was due to his depressive disorder, the examiner did not see depressive symptoms that would account for the Veteran's employability. An April 2009 VA examination report for PTSD documented that the Veteran last worked in 1995. The examiner concluded that, the Veteran's symptoms were of a serious to moderate range of impairment in interpersonal, social, avocational, and vocational aspects. The aforementioned evidence both for and against the claim is in relative equipoise. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities impacted his ability to secure or follow substantially gainful employment and is, thus, shown to have met the criteria under 38 C.F.R. § 4.16(a) for a TDIU, effective October 29, 2004. DEA The Veteran was granted basic eligibility for DEA benefits, effective March 30, 2012, based upon the finding that his service-connected disabilities had rendered him permanently and totally disabled as of that date. For the purposes of educational assistance under 38 U.S.C.A. Chapter 35, the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C.A. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapters 30, 31, 32, and 35 of this title or Chapter 106 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C.A. § 5113. The Veteran has been granted, herein, an effective date of October 29, 2004 for the award of TDIU. Accordingly, an effective date of October 29, 2004 is warranted for the grant of basic eligibility for DEA benefits pursuant to Chapter 35. II. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2016). Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct times where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability should be viewed in relation to its history. 38 C.F.R. § 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present PTSD claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). With regard to the present bilateral hearing loss claim, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). PTSD As an initial matter, to the extent that the Veteran contends that his service-connected PTSD and service-connected depressive disorder associated with tinnitus should not have been combined, the Board finds that a separate disability rating is not warranted. See February 2013 Notice of Disagreement. The U.S. Court of Appeals for Veterans Claims has held that the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259 (1994). As noted below, July 2012 and October 2016 VA examiners were unable to differentiate what symptoms were attributable to the diagnoses of PTSD and depressive disorder, and thus a separate rating is not warranted. The Veteran appealed the initial rating of a July 2012 rating decision granting entitlement to service connection for PTSD at 50 percent, effective July 23, 2012, and continuing the evaluation of PTSD with a prior grant of service connection for depressive disorder in October 2009. The Veteran's service-connected PTSD with depressive disorder was assigned a rating of 30 percent from October 19, 1999, 50 percent from April 28, 2009, and 70 percent from October 20, 2016, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 30 percent rating is warranted for occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as a depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). Id. A 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The 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 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 the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for 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." "Although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of [occupational and social] impairment." Id. In reviewing the evidence of record, the Board will consider the assigned GAF scores; however, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability. Again, GAF scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126 (a). October 29, 2004 to April 27, 2009 The Veteran was afforded a VA examination in June 2008 for mental disorders. He related that he had an extremely long psychiatric and medical history beginning in 1972. He reported that he has experienced daily severe psychiatric symptoms since 1978. He became aware of his depression in 1992. He received outpatient care from a private psychiatrist. However, he had never been hospitalized for psychiatric reasons. He reported that when he was a teacher in 1978, he was '"going berserk in the classroom," because of his tinnitus. He explained that his ears and classroom noise '"literally drove [him] crazy."' He described the first three years as '"terrible"' and finally in 1992, he stated that he '"couldn't take it anymore"' and quit. The examiner found that the Veteran functioned well socially. The Veteran described having "lots of friends" who he helped and drove around. He also enjoyed fishing and gambling with his wife. He complained about feeling sad or depressed in response to "troubling" situations such as being unemployed, difficulty sleeping, tinnitus, and having served in the military and in Vietnam. At first, he explained that nothing except for his tinnitus contributed to his depression and he had no psychiatric symptoms other than his depression. Later, he stated that he had PTSD but that it did not have anything to do with his depression. Because of his difficulty sleeping, he took aspirin to sleep. Initially, he contributed his sleep disturbance as secondary to his tinnitus, but later he stated that his sleep disturbance was primary (i.e. not related to any other medical problem or tinnitus). Additionally, he described sleeping through the night and then stated that he awoke multiple times during the night. On physical examination, the Veteran was a moderately disheveled and wore a soiled shirt. His thought processes were unclear, rambling, self-referencing and dyer-dramatized. He also rambled in speech. He was oriented to person, place, and time. He did not have any delusions, hallucinations, or panic attacks. He did not have any short or long-term memory loss. He reported '"flashes"' of thoughts of throwing himself out of the car. He stated that his wife helped him with the finances because she thought he was irresponsible with money. He stated that he was able to bathe, dress and drive himself. He did not cook or do the dishes because he was "not raised" to do those activities. The examiner diagnosed dysthymic disorder because the Veteran's subjectively depressed mood had occurred part of most days for the past two years. Additionally, the Veteran had somewhat attenuated symptoms of low self-esteem and feeling hopeless as well as sleep disturbance. The examiner explained that PTSD could be contributory to the Veteran's symptoms; however, it had not been explored yet. There was no objective evidence that the Veteran's tinnitus was interfering with his life or causing his depression and by definition, the examiner stated that dysthymic disorder was psychogenic and not physiologic in nature. The examiner opined that the Veteran's current and past symptomatology did not support the diagnosis of major depression according to DSM-IV. He was assigned a GAF score of 68 given that the examiner did not see depressive symptoms that would account for the Veteran's employability. At a private mental status evaluation in April 2009, the Veteran appeared groomed. His attention was fair. His mood was depressed and anxious. His affect was appropriate. He had normal speech and motor activity. He had no hallucinations or delusions. His immediate memory was impaired but his judgment was intact. He was oriented in all spheres. He was not suicidal or homicidal. He was diagnosed with major depression and PTSD. He had a GAF score of 59; however, the psychiatrist noted the highest GAF score assigned was 65. April 28, 2009 to October 19, 2016 The Veteran was provided a VA examination for PTSD in April 2009. He appeared clean and casually dressed. He was cooperative but easily distracted. His speech was spontaneous and clear. He was in an anxious and depressed mood. His affect was appropriate to content yet depressive in tone. Persistent tinnitus led to upset feelings and difficulty concentrating and focusing on tasks. He was oriented to person and place. He had suicidal ideation such as driving and thinking '"what if I just opened the door?"' and sometimes wishing that "it was over." He understood the outcome of his behavior and that he had a problem. He did not have any delusions or hallucinations however he stated that he sees and hears things '"in his head."' He experienced some insomnia. He had panic attacks and once went to the hospital. He had obsessive behavior where he felt compelled to work in yard and keep active to avoid thinking "all sorts of crazy things" such as his friends from the military, what he did there, his dad, and his mom who was killed by an 18-wheeler. He had not had any suicidal or homicidal thoughts. He had had no episodes of violence and his extent of impulse control is fair. His memory was mildly impaired. He was diagnosed with dysthymic disorder. He was assigned a GAF score of 55, which reflected that he had not worked for many years and was limited socially to family and those well known to him. Overall, the examiner found that the Veteran's symptoms fell between a serious to moderate range of impairment - interpersonally, socially, avocationally, and vocationally. At a private mental status evaluation in August 2009, the Veteran appeared groomed. His attention was fair. His mood was moderately depressed and anxious. His affect was appropriate. He had normal speech and motor activity. His thought processes were intact. He had no hallucinations or delusions. His immediate memory was impaired but his judgment was intact. He was oriented in all spheres. He was not suicidal or homicidal. He was diagnosed with major depression and PTSD. He had a GAF score of 62; however, the psychiatrist noted the highest GAF score assigned was 69. In July 2012, the Veteran underwent another VA examination for PTSD. The examiner documented that the Veteran was retired and had not worked for many years, likely a result of his hearing loss and mental health symptoms. The Veteran's social life was primarily his family. He was able to do some chores at home, but he was neglectful of his personal hygiene, and needed assistance and reminders from his wife. The Veteran's symptoms included depressed mood; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; suicidal ideation; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. He was diagnosed with PTSD and major depressive disorder and assigned a GAF score of 60. The examiner determined that it was not possible to differentiate what symptoms were attributable to each diagnosis. The examiner stated that it was not clear if depression was secondary to PTSD or related to his hearing disability, or to other etiologies. The Veteran had occupational and social impairment with reduced reliability and productivity. The examiner noted that the April 2009 VA PTSD examination found insufficient evidence for PTSD because a significant stressor was overlooked or not conceded and because the April 2009 examiner could not find sufficient evidence to support Criteria C and D for PTSD. In September and December 2012, the Veteran underwent additional VA mental status examinations. He was appropriately dressed, cooperative and pleasant. He was alert and oriented in all spheres. He presented with a depressed or irritated mood and had a restricted to appropriate range of affect. He did not exhibit any psychomotor agitation, retardation, or repetitious activities. He was able to attend appropriately to conversational content and his speech rate was within normal range. Although not formally assessed, his intellect was deemed to be within the average range based on vocabulary use and depth of understanding demonstrated. His thought processes were coherent, logical, and goal directed. His judgment and insight were fair. He denied current hallucinations or delusions. He had no flight of ideas, loose associations, or thought blocking. He denied current homicidal and suicidal ideations. He was diagnosed with depressive and anxiety disorder and was assigned a GAF score of 55. In January 2013, the Veteran's mental status mirrored his 2012 VA mental status examination results. However, his mood was euthymic mood and his affect was appropriate to thought content. He again was diagnosed with depressive and anxiety disorder but was assigned a GAF score of 58. From October 20, 2016 The Veteran was afforded an additional VA examination for PTSD in October 2016. He was alert, cooperative, and oriented. He showed some distress in recounting stressful in-service experiences. His PTSD symptoms included depressed mood; anxiety; suspiciousness; panic attacks that occurred weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; and impaired impulse control, such as unprovoked irritability with periods of violence. He was diagnosed with PTSD and major depressive disorder. The examiner determined that it was not possible to differentiate what portion of each symptom was attributable to each diagnosis. The examiner stated that it was not clear if depression was secondary to PTSD or related to his hearing disability, or to other etiologies. The Veteran was found to have total occupational and social impairment. The examiner noted that hearing loss and cardiac problems exacerbated the Veteran's depression and PTSD which he was able to better suppress when he was able to continue working. Analysis For the period of October 29, 2004 to October 19, 2016, the aforementioned evidence reflects that the Veteran's PTSD with depressive disorder was manifested by difficulty sleeping, irritability, anxiety, depression, panic attacks, memory impairment, unclear and rambling thought processes and speech, neglect of personal appearance and hygiene, suicidal ideation, and difficulty in establishing and maintaining effective relationships. In so finding, the Board acknowledges that while the evidence has varied, the Veteran's June 2008, April 2009, and July 2012 VA examinations have shown the frequency, severity and duration of symptoms consistent with a higher 70 percent rating, which contemplates occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood. However, at no point during the period of the appeal, has the Veteran's service-connected PTSD with depressive disorder been shown to have met the criteria for the higher rating of 100 percent. Although the October 2016 VA examiner indicated that the Veteran had total social and occupational impairment, the medical and lay evidence of record do not support that assessment. Medical records noted that the Veteran exhibited unclear thought processes and rambled speech in April 2008; however, the remainder of the record does not indicate that he had any impairment of thought processes or communication. In fact, the Veteran's thought processes were logical, goal directed, and intact. He was oriented to person, place, time, and situation. He exhibited no delusions or hallucinations. While the Veteran expressed suicidal ideation, these thoughts did not appear to be persistent. He did not have persistent danger of hurting himself. Homicidal ideas were not present. He neglected his general appearance at times but performed other activities of daily living. Although the Veteran did not work, he maintained social and personal relationships with his wife and friends. Taken together with the other evidence noted above indicating at most severe PTSD but not total impairment, with few, if any, of the symptoms described under 100 percent rating, the Board finds that a 100 percent rating is not warranted. Furthermore, the GAF scores assigned during this period do not tend to support the assignment of a higher rating. As indicated, the Veteran had been assigned GAF scores ranging from 55 to 69 during the course of the appeal period. According to DSM-IV, GAF scores ranging from 51 to 60 reflect 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-worker), and GAF scores ranging 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, and has some meaningful interpersonal relationships. Here, the GAF scores assigned during the appeal period are reflective of mild to moderate symptomatology. Accordingly, the Board finds that a rating of 70 percent for PTSD with depressive disorder, but no higher, is warranted from October 29, 2004. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Bilateral Hearing Loss The Veteran's service-connected bilateral hearing loss is rated as 10 percent, effective March 30, 2012, pursuant to the criteria of 38 C.F.R. § 4.85, Diagnostic Code 6100. In evaluating service-connected hearing loss, disability ratings are derived from mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. 38 C.F.R. § 4.85; Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1000, 2000, 3000 and 4000 Hertz. The rating schedule establishes eleven (11) auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. For VA purposes, VA audiological evaluations must be conducted by a State-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85 (b). The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85 (d). Regulations also provide that in cases of exceptional patterns of hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 hertz) is 55 decibels or more, VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. If the puretone threshold is 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz, VA must determine the Roman numeral designation for hearing impairment from either Table VI or VIA, whichever results in the higher Roman numeral. That designated Roman numeral shall be evaluated at the next highest Roman numeral. Each ear shall be evaluated separately. 38 C.F.R. § 4.86 (a). In Martinak v. Nicholson, 21 Vet. App. at 455 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, in addition to providing objective test results, a VA audiometric examination report must address the functional effects caused by a hearing disability because an extraschedular rating under 38 C.F.R. § 3.321(b) "does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted." The Court also noted that VA's policy requiring VA audiologists to describe the effect of a hearing disability on occupational functioning and daily activities facilitates extraschedular determinations by requiring VA audiologists to provide such information. Id. The Veteran underwent a VA audiological examination in July 2013. The Veteran reported that his hearing loss caused significant problems with speech understanding. Audiometry results revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 45 70 85 LEFT 45 50 50 75 80 Speech audiometry using the Maryland CNC test revealed speech recognition ability of 76 percent in the right ear and of 76 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss and determined that the Veteran's hearing loss impacted ordinary conditions of daily life, including ability to work. Given the average pure tone thresholds, 64 in the right ear and 64 in the left ear, the mechanical application of the above results compels a numeric designation of IV in the right ear and IV in the left ear under Table VI. When those values are applied to Table VII, it is apparent that a 10 percent rating is accurate under the provisions of 38 C.F.R. § 4.85. Moreover, none of the audiological findings qualify as an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, as the Veteran at no point had puretone thresholds of 55 decibels or more at each of the four specified frequencies or a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Thus, the Board finds that an increased rating in excess of 10 percent for bilateral hearing loss is not warranted. Additionally, the Board finds that VA treatment records do not contain any audiological findings that would merit an increased rating under 38 C.F.R. § 4.85 or § 4.86. The Board in no way discounts the difficulties that the Veteran experiences as a result of his bilateral hearing loss; however, because hearing loss is a disability requiring a "mechanical application of the rating schedule," the Board cannot find a basis in law or regulation to support a disability rating in excess of the 10 percent rating he has been assigned. See Lendenmann, 3 Vet. App., 345. To that end, the Veteran's assertions as to the severity of his bilateral hearing loss, though competent and credible, are less probative than the objective audiology studies of record, prepared by skilled professionals, in determining that his bilateral hearing loss does not meet the criteria for a compensable rating. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Further, the examination report documented above also noted and considered the Veteran's report of the impact his hearing loss had on his ordinary conditions of life including his ability to work. See Martinak, 21 Vet. App. 447. Accordingly, the Board finds that the preponderance of the evidence is against an increased schedular rating. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date of October 29, 2004, but no earlier, for the award of service connection for PTSD with depressive disorder is granted. An effective date of March 30, 2012, but no earlier, for the assignment of a 10 percent rating for bilateral hearing loss is denied. An effective date of October 29, 2004 for the award of TDIU is granted. An effective date of October 29, 2004 for the award of DEA benefits is granted. An increased rating of 70 percent for PTSD with depressive disorder, from October 29, 2004, is granted. An increased rating in excess of 10 percent for bilateral hearing loss is denied. REMAND VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. § 4.16 (2016). A total disability rating for compensation based on a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2016). The Veteran contends that he has been retired since 1992 due to his hearing loss, tinnitus, depression, and PTSD. He requested an effective date of October 19, 1999, the date of his original claim for entitlement to service connection for major depressive disorder. See March 2012 Third Party Correspondence; October 2013 Formal Notice of Appeal; September 2017 Correspondence. See also June 2012 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Board, herein, granted an effective date of October 29, 2004 for the award of TDIU, under 38 C.F.R. § 4.16(a). Prior to October 29, 2004, the Veteran is service-connected for PTSD with depressive disorder, rated as 30 percent disabling from October 19, 1999; tinnitus, rated as 10 percent disabling from February 26, 1997; and bilateral hearing loss, rated as noncompensable from February 26, 1997. Hence, the Board finds that the Veteran does not meet the schedular requirement for the award of a TDIU due to service-connected disabilities under 38 C.F.R. § 4.16(a). The Board concedes that the Veteran has been unemployed since 1992. See November 1999 VA examination report; see also June 2012 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. At a November 1999 VA examination for mental disorders, the Veteran reported that he worked in a blue print shop and obtained his GED after being discharged from active duty. He then started working for an air conditioning filter manufacturing company in 1963. In 1965, he went to work in grounds and maintenance. He was injured on the job and medically retired in 1972. At that point, he went back to school and obtained a bachelor's degree in education. In 1978, he worked as a substitute teacher and then as a teacher for a total of approximately six years. In 1992, he reportedly stopped working because of physical problems. In July 2001, a VA examiner noted that the Veteran had been unemployed and had impairment in social, occupational and other areas of functioning. The Board notes that August 1999 and July 2001 VA audio examinations do not reflect the Veteran's level of occupational impairment. Where a claimant does not meet the schedular requirements of 38 C.F.R. § 4.16(a), a TDIU may be awarded on an extraschedular basis under 38 C.F.R. § 4.16(b). However, the Board has no authority to assign a TDIU rating under 38 C.F.R. § 4.16(b), in the first instance. Rather, the claim must be referred to Director of VA's Compensation Service for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted). Thus, the Board finds that a remand is required for such referral. See 38 C.F.R. § 4.16(b). The Board also defers consideration of an effective date for the grant of basic eligibility for DEA benefits prior to October 29, 2004, until the requested development below has been completed. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)(two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the case is REMANDED for the following action: 1. The AOJ should refer issue of entitlement to an effective date prior to October 29, 2004, for the award of a TDIU to VA Under Secretary for Benefits or the Director of the Director of VA's Compensation and Pension Service for consideration of the assignment of a total rating based on individual unemployability due to service-connected disabilities on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). The response must be associated with the Veteran's file. 2. After the development requested above is completed, the AOJ should readjudicate the claim. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs