Citation Nr: 1714981 Decision Date: 05/05/17 Archive Date: 05/11/17 DOCKET NO. 12-30 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether the evaluation assigned for scars, right thigh, and right knee (residual of gunshot wound) was clearly and unmistakably erroneous (CUE). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to a rating in excess of 50 percent prior to August 29, 2012 for an anxiety disorder, not otherwise specified, and a rating in excess of 30 percent thereafter. 4. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Charles D. Romo, Esq. ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served from November 1963 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 1968, August 2007, April 2010, June 2010, and August 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran submitted his claim for an increased rating for his anxiety disorder on November 30, 2009. The June 2010 rating decision denied the Veteran's claim for a rating in excess of 10 percent for his service-connected anxiety disorder. However, in a September 2012 rating decision, the RO assigned a 50 percent rating for the Veteran's anxiety disorder effective November 30, 2009 and a 30 percent rating effective August 29, 2012. Despite the increased evaluation, the Court of Appeals for Veterans Claims (Court) has held that, where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the RO and Board are required to consider entitlement to all available disability ratings for that condition. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Thus, these issues remain in appellate status. The Veteran was scheduled for a hearing in June 2016. In a June 2016 letter, the Veteran's attorney indicated that the Veteran withdrew his hearing request. FINDINGS OF FACT 1. In a January 1968 rating decision, the RO assigned a non compensable rating for the Veteran's right thigh and right knee scars (residual of gunshot wound). 2. The correct facts, as they were known at that time, were before the RO in January 1968, and the RO correctly applied the statutory and regulatory provisions then in effect. The decision was supported by evidence then of record and was consistent with the law and regulations then in effect. 3. By a rating decision entered in August 2007 the RO continued a non compensable rating for the Veteran's right thigh and right knee scars (residual of gunshot wound). 4. The correct facts, as they were known at that time, were before the RO in August 2007, and the RO correctly applied the statutory and regulatory provisions then in effect. The decision was supported by evidence then of record and was consistent with the law and regulations then in effect. 5. The evidence is not sufficient to show that the Veteran's bilateral sensorineural hearing loss had its onset in service, within one year of separation from service, or is otherwise related to his service. 6. Prior to August 29, 2012 the Veteran's anxiety symptoms more nearly approximate the degree of occupational and social impairment contemplated by a 50 percent schedular rating, but no higher. 7. From August 29, 2012, the Veteran's anxiety symptoms more nearly approximate the degree of occupational and social impairment contemplated by a 30 percent schedular rating, but no higher. 8. The Veteran's service-connected disabilities are not shown to be of such a nature or severity to prevent him from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. There was no CUE in the January 1968 rating decision that assigned a noncompensable rating to the Veteran's service-connected residuals of a right thigh gunshot wound. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105 (2016). 2. There was no CUE in the August 2007 rating decision that assigned a noncompensable rating to the Veteran's service-connected residuals of a right thigh gunshot wound. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105 (2016). 3. The criteria for entitlement to service connection for bilateral sensorineural hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2016). 4. The criteria for an evaluation in excess of 50 percent for an anxiety disorder prior to August 29, 2012, are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.126, 4.130, Part 4, Diagnostic Code 9411 (2016). 5. The criteria for an evaluation in excess of 30 percent for PTSD from August 29, 2012, are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.126, 4.130, Part 4, Diagnostic Code 9411 (2016). 6. The criteria for referral for an extraschedular TDIU are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16(b) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). Regarding the Veteran's service connection, increased rating, and TDIU claims, letters sent to the Veteran in December 2009, January 2010, and February 2011 provided compliant notice. The Court however, has held that VA's duties to notify and assist contained in the VCAA do not apply to assertions of clear and unmistakable error in prior final decisions. Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Regarding the duty to assist, all relevant evidence necessary for an equitable resolution of the issues on appeal have been identified and obtained, to the extent possible. The evidence of record includes VA examination reports; VA treatment records; private treatment notes; Social Security Administration Records (SSA); and evidence submitted by the Veteran, including his lay statements. Although some of the Veteran's service treatment records are associated with the record, in July 2011 the RO issued a formal finding of unavailability of the Veteran's complete service treatment records. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Therefore, the Board finds that VA has satisfied its duty to assist in this regard. Also, the Veteran was afforded VA examinations in April 2010, June 2010, June 2011 and August 2012. The Board finds the examinations adequate because, as will be shown below, they were based upon consideration of the Veteran's pertinent medical history, and his lay assertions and current complaints, and because it described the claimed disability in sufficient detail to allow the Board to make a fully informed determination. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that VA must provide an examination that is adequate for rating purposes). The Board notes that the most recent VA psychiatric evaluation of record is from August 2012, and VA has a duty to provide the Veteran with a contemporaneous examination. See Green v. Derwinski, 1 Vet. App. 121 (1991). However, the Veteran has not asserted and the evidence does not suggest that his symptoms have worsened since the onset of his appeal. Thus, a new examination is not warranted. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Analysis Clearly and Unmistakably Erroneous (CUE) The Veteran asserts that there is clear and unmistakable error in the rating actions that assigned a noncompensable evaluation for the gunshot wound the Veteran suffered to his right leg. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43. Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision, which constitutes a reversal of a prior decision on the grounds of CUE, has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104 (a); 3.400(k). The Court has propounded a three-pronged test to determine whether CUE is present in a prior determination. First, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied. Second, the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made." Third, a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel, 6 Vet. App. at 245, quoting Russell, 3 Vet. App. at 313-14. Here, a January 1968 rating decision granted service connection for residuals of a right leg gunshot wound and assigned a noncompensable rating effective October 1, 1967. Given that over 40 years have passed since January 1968 rating decision, many laws and regulation have changed and such changes cannot be considered in determining whether CUE was committed. An August 2007 rating decision continued the noncompensable rating. Despite receiving notice of the decisions the Veteran did not perfect an appeal. In general, in the absence of CUE, rating decisions that are not timely appealed are final. In a January 2010 statement, the Veteran, through his attorney, asserted that there is clear and unmistakable error in the rating actions that assigned a noncompensable evaluation for the gunshot wound the Veteran suffered to his right leg. Specifically, the Veteran asserts that VA did not adhere to 38 C.F.R. § 4.56(b) which provides that a through and through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. For VA rating purposes the cardinal signs and symptoms of muscle damage disability are loss of power, weakness, lowered threshold fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. See 38 C.F.R. §4.56(c). The Board finds that as the medical evidence of record does not show right leg muscle damage, thus there was is no CUE in the January 1968 and August 2007 rating decisions and the determinations are final. A September 1969 VA examination report indicates that the Veteran had two scars 5/8 inch in diameter which are rather superficial, not depressed nor adherent, in the lower one-third of the right lateral thigh. The examiner noted that various movements of the lower extremities were not restricted and not associated with discomfort. The examiner reported that residuals of the Veterans left thigh wound were asymptomatic. There was no muscle damage noted. A February 2007 VA examination report indicated that on examination of the right leg, the Veteran the two well healed scars located in the lateral upper thigh measuring approximately 2 centimeters by 1 centimeter and approximately 3 centimeters apart. There was no pain on examination. The examiner reported that the scar is not unstable. The examiner also reported that the scars are superficial and there is no pain, adherence to underlying tissue or decreased limitation due to the scar. There is no longer a scar on the right knee that the examiner was able to find. The Veteran was also afforded an additional VA examination in August 2012. The Veteran reported chronic daily right knee pain of varying degree. Physical examination showed the Veteran did not have any functional loss based on weakened movement, excess fatigability, atrophy of disuse, instability of station, or disturbance of locomotion. The Veteran also showed full muscle strength with flexion and extension. The medical evidence of record does not show that the Veteran's residuals of a right leg gunshot wound resulted in muscle damage. In sum, the Board finds that the Veteran has not established that the correct facts, as known at the time, were not before the RO in January 1968, and has not shown that any incorrect application of statutory or regulatory provisions was outcome determinative (i.e., the outcome would have been manifestly different). Thus, the Board finds there was no CUE in the January 1968 and August 2007 rating decisions and the determinations are final. Service Connection for Bilateral Hearing Loss The Veteran asserts that he has hearing loss as a result of service. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially 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). Moreover, pursuant to 38 C.F.R. § 3.309, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a chronic disease becomes manifest to a degree of 10 percent within one year from the date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Generally, to substantiate a claim of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Where there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Bilateral sensorineural hearing loss is a chronic disease within the meaning of 38 C.F.R. §3.309. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. "W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. The Veteran contends that his current hearing loss is due to acoustic trauma that he incurred during combat service. Specifically, he alleges that he incurred hearing loss in his duties as a rifleman in Vietnam. The Board notes that noise exposure is consistent with the duties and circumstances described in the Veteran's personnel records. As such, the Board concedes the occurrence of the in-service acoustic trauma. As noted above, the first element of service connection requires evidence of a present disability. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Here, the June 2011 VA audiological evaluation report revealed speech recognition of 80 percent in the right ear and 70 percent in the left ear. The audiological evaluation puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 20 60 55 LEFT 20 10 45 85 70 Since the Veteran's auditory threshold in the several frequencies is greater than 45 decibels in the left and right ear, the record is clear that the Veteran has a current hearing loss disability with the definition of VA law. See also April 2011 Private Audiological Evaluation. Therefore, the issue that remains disputed is whether the Veteran's bilateral hearing loss is related to service. Unfortunately, the Veteran's service treatment records do not contain any audiograms although the Veteran's in-service treatment notes are silent for any complaints or treatment for hearing impairment. While the Board acknowledges that the Veteran's complete service treatment records were not available, the Board also acknowledges that the Veteran did not assert that his hearing impairment had its onset in service. During the June 2011 VA audiological evaluation, the Veteran reported his bilateral hearing loss became noticeable 7 to 8 years prior to the examination and that it became progressively worse. The examiner was unable to come to a conclusion regarding whether the Veteran's current hearing loss was related to noise exposure in service. The examiner stated that a September 2005 Institute of Medicine Report on noise exposure in the military concluded that if documentation of the existence of hearing loss at separation is missing, it is nearly impossible to determine whether hearing loss later in life is the result of noise exposure in service. Thus, because no audiograms from service are available, he examiner was unable provide a nexus opinion without resort to speculation. The only other medical evidence addressing the nexus element is an April 2011 letter from L.M. Aud., of Audiological Associates of North Florida stating, "[The Veteran's] high frequency hearing sensorineural hearing loss is not inconsistent with his report of noise exposure in service." [emphasis added]. The Board finds this statement speculative, at best. Thus, it does not provide a sufficient foundation upon which to base a nexus opinion. See Bostain v. West, 11 Vet. App. 124 (1998); Obert v. Brown, 5 Vet. App. 30 (1993). The Board has also considered the Veteran's assertions that his hearing loss is related to noise exposure. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). It is also well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether the Veteran's current hearing loss disability is related to noise exposure in service requires medical expertise to determine. As previously noted sensorineural hearing loss may be presumed to have been incurred in service if manifested to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1110; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). In addition, a disorder may be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service, or if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b). Here, however, the Veteran does not assert and the evidence does not show that the Veteran's hearing loss manifested within one year of service. The Veteran specifically indicates that his hearing loss did not become noticeable until several years after service. In sum the competent evidence to include the Veteran's service treatment records, private treatment records, and the Veteran's statements regarding the onset of his bilateral hearing loss show that service connection for bilateral hearing loss is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Increased Rating for Anxiety Disorder The Veteran asserts that his service-connected anxiety disorder is more disabling than reflected in his current rating. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The assignment of a particular Diagnostic Code depends wholly on the fact of the particular case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Anxiety disorders are evaluated under VA's General Rating Formula for Mental Disorders. Under the formula, a 30 percent rating is warranted when there is 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty 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. 38 C.F.R. § 4.130, DC 9411. 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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. The criteria for a 70 percent rating for PTSD are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent rating is warranted when 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. 38 C.F.R. § 4.130, DC 9411. Ratings are assigned according to the manifestation of particular symptoms. However, 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 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, 442-43 (2002). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996). A score of 31 to 40 reflects some impairment in reality testing or communication or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. A score of 41 to 50 is assigned where there are "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed. 1994). A score of 51 to 60 is appropriate where there are "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. A GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. Id. at 46. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran asserts that his anxiety disorder (claimed as PTSD) is more disabling than reflected by his 50 percent rating prior to August 29, 2012 and his 30 percent rating thereafter. The Board finds that based on the competent evidence of record, prior to August 29, 2012, the Veteran's anxiety symptoms more nearly approximated the degree of occupational and social impairment contemplated by a 50 percent schedular rating, but no higher. During mental health treatment in February 2010, the Veteran reported insomnia and nightmares related to his in-service experience. See VA Treatment Records. The Veteran reported irritability and exaggerated startle response with loud noises. The Veteran reported that he isolates himself when is grandchildren come over because he is afraid to yell at them. He reported avoiding news programs and other things that remind him of Vietnam. He reported experiencing intrusive thoughts of war. The Veteran also reported low energy, low motivation, low enjoyment in things, and persistent anxiety. He also reported thinking about death in the last but stated that he does not want to die because he loves his family. The treating clinician noted that during treatment the Veteran's dress was casual with good hygiene. His attitude was cooperative. The Veteran's speech and gait were slow. His affect was blunted and reactive. His mood was depressed. The Veteran reported short term memory deficits and denied hallucinations and delusions. The Veteran had a GAF score of 65. The Veteran was afforded a VA mental health evaluation examination in June 2010. During the examination the Veteran reported that his health problems have taken a toll on his wife and family. The Veteran described his degree and quality of relationships as good. The Veteran denied suicide attempts or a history of violence or assaultiveness. The Veteran reported that he functions fairly well in relationships with bouts of irritability. The examiner also noted a diagnosis of alcohol dependence in full remission. During the examination the Veteran was clean, neatly groomed and appropriately dressed. He appeared fatigued. His speech was coherent but slurred. He was cooperative and friendly toward the examiner. His affect was blunted and his mood was anxious. The examiner noted that the Veteran was easily distracted and had a short attention span. He was oriented to person, time, and place. The examiner also noted some cognitive slippage and preoccupation with one or two topics. The Veteran denied delusions, homicidal thoughts, suicidal thoughts, and reported some visual hallucinations. The Veteran's judgment and insight were not impaired. The Veteran reported occasional panic attacks, which the examiner noted may be related to his heart problems. The Veteran reported that he was able to maintain minimum personal hygiene and had no problems with activities of daily living. The Veteran's remote memory was moderately impaired while his recent memory was mildly impaired. His immediate memory was normal. The Veteran reported intrusive memories from services once to twice a week, flashbacks 3 to 4 times a month and nightmares 3 to 4 times a week. He also reported weekly physical reactions triggered by cues associated with trauma. The Veteran also reported anhedonia, detachment, restricted range of affect, and a sense of foreshortened future. The Veteran reported sleep disturbance, irritability and anger, and increased startle response. The examiner concluded that the Veteran's service-connected anxiety disorder negatively impacts his mood and relationships, however, his occupational functioning is mostly related to his physical impairments, which in turn increase anxiety symptoms. The Veteran's VA treatment records also show mental health treatment in November 2010. The Veteran denied suicidal thoughts and reported that he was sleeping ok. He reported persistent anxiety. He stated that he continued to have unwanted thoughts about his service. He reported being watchful and on guard. During treatment he had a GAF score of 70. Based on the aforementioned evidence, the Board finds that the Veteran's anxiety symptoms more nearly approximated the criteria for a 50 percent rating. The Veteran reported impaired memory and irritability. He also reported that although he was sometimes irritable, it did not have a major impact on his familial relationships. The Veteran was also able to maintain his personal hygiene. Prior to August 29, 2012, none of the criteria for a 70 percent or 100 percent rating were demonstrated, nor could one conclude that existing psychiatric symptoms would have been best approximated by a 70 percent or 100 percent rating. The Veteran denied a history of violence. His judgment and thinking were not impaired. Thus a rating in excess of 50 percent prior to August 29, 2012 is not warranted. With respect to the second stage on appeal, the Board finds that based on the competent evidence of record, from August 29, 2012, the Veteran's anxiety disorder symptoms more nearly approximated the degree of occupational and social impairment contemplated by a 30 percent schedular rating, but no higher. The Veteran's anxiety symptoms showed some improvement. The Veteran was afforded an additional VA psychiatric examination in August 2012. The examiner reported that the Veteran's occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. During the examination the Veteran had a GAF score of 70. The Veteran described his anxiety symptoms as "feeling like [he's] on the fence all of the time." He reported irritability and nightmares that occur frequently. He reported that he felt depressed and he felt low energy and motivation to do things. He reported sleep trouble and fatigue. He further reported that he is quick to respond in an outspoken fashion. The Veteran denied memory loss, panic attacks, suspiciousness, impaired judgment, and inability to establish and maintain effective work and social relationships. The examiner concluded that the Veteran's present anxiety symptoms may cause some decrease in efficiency or a decline in task persistence but would not cause functional impairment in physical or sedentary tasks. The Board concludes that from August 29, 2012, the Veteran's anxiety manifestations are insufficient in severity to produce the level of social and occupational impairment contemplated by a 30 percent evaluation. During the August 2012 examination, the Veteran denied suspiciousness, panic attacks, continuous panic and depression, memory lost, impaired judgment or thinking, suicidal ideation, and persistent delusions or hallucinations. Thus, the Board finds that rating in excess of 30 percent from August 29, 2012 is not warranted. In sum, there is no basis for rating in excess of 50 percent prior to August 29, 2012 and a rating in excess of 30 percent thereafter for the Veteran's service-connected anxiety disorder. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered whether the Veteran's claim should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). An extraschedular analysis is not required in every case. In fact, in Yancy v. McDonald, 27 Vet. App. 484 (2016), the Court noted that, when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted." See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). Similarly, the Court stated in Yancy "that the Board is required to address whether referral for extraschedular consideration is warranted for a Veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities." See Yancy, 27 Vet. App. at 495; see also Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In this case, neither the Veteran nor his attorney have argued that he is entitled to extraschedular consideration for his anxiety disorder. In addition, the issue of whether the Veteran is entitled to referral for extraschedular consideration for his service-connected anxiety disorder is not reasonably raised by a review of the record. As discussed above, the record evidence shows that, the schedular rating currently assigned for his service-connected anxiety disorder is supported by the medical evidence. VA also is required to consider whether an extraschedular rating is warranted for the combined effects of the service connected disabilities. Johnson, 762 F.3d at 1365. The combined effects extraschedular rating is meant to perform a gap filling function to provide compensation between the combined schedular rating and a total rating. Id. at 1365-66. The Veteran has not asserted, and there is no indication that, the combined rating is inadequate or does not contemplate the current level of disability. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Thus, referral for assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). Total Disability Rating Based on Individual Unemployability The Veteran claims entitlement to a total disability rating based on individual unemployability. Schedular TDIU may be assigned when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). In cases where these percentages are not met, but the disabled person is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, the case should be submitted to the Director, Compensation Service, for consideration of extra-schedular TDIU. See 38 C.F.R. § 4.16(b). The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. Id. In determining whether an appellant is entitled to a TDIU, the Veteran's non service-connected disabilities and advancing age may not be considered. 38 C.F.R. § 4.19 Here, the Veteran is service connected for an anxiety disorder at 30 percent, a muscle injury of the left triceps at 20 percent, diabetes mellitus II at 20 percent, peripheral neuropathy of the left lower extremity at 20 percent, peripheral neuropathy of the right lower extremity at 20 percent, paralysis of the median nerve left arm at 10 percent, and residuals of a gunshot wound to the right thigh and knee at 0 percent. The Veteran's combined disability rating is 80 percent. However, there is not at least one disability ratable at 40 percent or more. Therefore, the Veteran does not meet the schedular requirements under 38 C.F.R. § 4.16(a). Although the Veteran does not meet the applicable percentage standards, the Board must still consider whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities to be eligible for referral for extra-schedular TDIU. The evidence indicates that the Veteran used to work for the State of Florida as a Senior Land Acquisition Agent for the Department of Environmental Services. He retired in 2007 due to medical conditions, to include stroke, aneurysm, surgery, and loss of vision in one eye. See August 2012 VA Examination Report. Notably, none of these conditions are service connected. In January 2010 correspondence, the Veteran reported that he had to resign from his job with the State of Florida because he could no longer work the hours that were required because of the disabling effects of the excessive fatigue, diabetes, PTSD and neuropathy. See January 2010 Statement in Support of Claim. The Veteran submitted February 2010 letters from his former employer at the Florida Department of Environmental Protection stating that the Veteran was unable to perform his duties because of his health issues. The letter further states, "[The Veteran] was no longer mentally or physically able to perform the work requirements. [He] because unable to concentrate or handle job details or communications. Those situations only led to his increased anxiety and frustration. The constant physical pain [the Veteran] showed when [I was] communicating with him and observing his limited mobility." Notably, in the Veteran's application for SSA benefits, he listed aneurysm, diabetes, pace maker, right eye blindness, stroke, and arthritis of the lower spine as the conditions that limit his ability to work. SSA records shows the Veteran was considered to be disabled from April 2007 with a primary diagnosis of cerebrovascular accident/trans ischemic attack and a secondary diagnosis was affective mood disorder. Neither disability is service connected. During the August 2012 VA examination, the Veteran reported that his service-connected diabetes and peripheral neuropathy impact his ability to work because he cannot stand for prolonged periods and has to be careful of his diet. However, the examiner opined that his peripheral neuropathy and diabetes should not preclude light duty or sedentary employment. The examiner further stated, "[T]he Veteran's anxiety disorder alone would not preclude employment without his other service considering his other service connected and non-service connected disabilities. His present symptoms of anxiety may cause some decrease in efficiency or a decline in task persistence but would not cause functional impairment in physical or sedentary tasks." The Veteran reported that his right leg scar residual of a gunshot wound impacted his ability to work because "his right knee does not cooperate like the left knee" and thus, he is "unable to lift." The examiner, however, indicated that his right knee scar should not preclude light duty or sedentary employment. The examiner also found that the Veteran's service-connected left shoulder and triceps disabilities did not preclude light duty or sedentary employment. The Board finds the VA examiners' opinions adequate and highly probative to the question at hand. The examiners possessed the necessary education, training, and expertise to provide the requested opinion. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The VA examiners conducted extensive examinations; the opinions were based on a review of the Veteran's claims file, which contained his statements, service treatment records, and post-service medical evidence. It is clear that the examiners took into consideration all relevant factors in giving their opinions. The Veteran has consistently reported, and the medical evidence shows, that his non service-connected disabilities, to include blindness in the right eye, chronic obstructive pulmonary disease, hypertension, sleep apnea, carotid arthro stenosis, and stroke prevent him from working. As noted above, non service-connected disabilities may not be a consideration when determining eligibility for a TDIU. While the Board is sympathetic to the limitations the Veteran faces, the Board is prevented from considering these disabilities as a factor leading to the Veteran's unemployability. Moreover, the Veteran's limitations due to his service-connected disabilities are considered in the 80 percent combined disability rating he receives. Indeed, the assignment of the 80 percent schedular rating is recognition of the functional limitations caused by his disabilities and that rating contemplates the severity and overall impact the symptoms have on the Veteran's life. As such, the evidence does not persuasively support a finding that the Veteran is unable to obtain and maintain substantially gainful employment solely due to his service-connected. See 38 C.F.R. §4.19. Thus, the Board finds that referral of the TDIU issue for extra-schedular consideration is not warranted. ORDER The motion to revise the January 1968 and August 2007 rating decisions assigning a noncompensable rating for scars, right thigh, and right knee (residual of gunshot wound) on the basis of CUE is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a rating in excess of 50 percent prior to August 29, 2012 for an anxiety disorder, not otherwise specified, and a rating in excess of 30 percent thereafter is denied. Referral for consideration of an extraschedular TDIU is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs