Citation Nr: 18149377 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-35 776 DATE: November 9, 2018 ORDER The motion to revise or reverse a September 19, 2005, decision that denied service connection for adjustment disorder with depressed and anxious mood, claimed as a nervous disorder, on the basis of clear and unmistakable error (CUE) is denied. The petition to reopening the previously denied claim for adjustment disorder with depressed and anxious mood is granted. Service connection for post traumatic stress disorder (PTSD) is denied. A rating higher than 30 percent for hypothyroidism is denied. A compensable rating prior to July 29, 2014 and in excess of 10 percent therefrom for marginal zone lymphoma is denied. REFERRED The issue of entitlement to service connection for breathing problems, to include constructive bronchiolitis (CB), or other pulmonary disease of unknown etiology, due to the burn pits or secondary to marginal zone lymphoma, was raised by the record in a November 2014 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See NOD, dated December 1, 2014. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). REMANDED Entitlement to service connection for an acquired psychiatric disorder (other than PTSD), to include as secondary to hypothyroidism and/or marginal zone lymphoma, is remanded. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for adjustment disorder with depressed and anxious mood was denied in a September 19, 2005, rating decision that became final because he did not submit a notice of disagreement or new and material evidence within the appeal period. 2. The correct facts, as known at the time, were before the VA adjudicators in September 19, 2005 and the statutory and regulatory provisions extant at the time were correctly applied. 3. Evidence received since the September 2005 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder. 4. The Veteran does not have a diagnosis for PTSD in accordance with the DSM-V related to active service. 5. The Veteran’s hypothyroidism is manifested by constipation. 6. During the appeal period, the Veteran’s hemoglobin count did not measure less than 13.1 gm/100ml. CONCLUSIONS OF LAW 1. The criteria to reserve or revise the September 2005 rating decision based on CUE are not met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 2. The September 2005 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has been received to reopen the service connection claim for service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.304(f). 5. The criteria for a rating higher than 30 percent for hypothyroidism are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7903. 6. The criteria for a rating higher than 0 percent from February 1, 2014, and 10 percent from July 29, 2014, for marginal zone lymphoma are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.59, 4.117, Diagnostic Codes (DCs) 7700 and 7716. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1986 to April 1987, August 1993 to September 1994, and December 2003 to March 2005. This case comes before the Board of Veteran’s Appeals (Board) on appeal of May 2014, September 2014, and October 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Whether revision or reversal of a September 19, 2005 rating decision, that denied service connection for adjustment disorder with depressed and anxious mood, on the basis of CUE is warranted. The Veteran asserts that there is CUE in the September 19, 2005 rating decision, that denied service connection for adjustment disorder with depressed and anxious mood. He contends, through his attorney, that there is error because a 2005 VA examination did not mention in-service findings for anxiety and provided no opinion on whether the current diagnoses were related thereto. See Third Party Correspondence (May 2014). He further reported other infirmities in the 2005 VA examination relied upon by adjudicators at the time of the September 2005 rating decision to support the motion for revision/reversal on the basis of CUE. See NOD (October 2014). The attorney concludes that there is CUE present because it is undebatable that service connection for his psychiatric disorder was warranted at the time of the September 19, 2005 rating decision. Id. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). Here, a September 19, 2005 rating action denied service connection for adjustment disorder with depressed and anxious mood, and the Veteran did not file a timely Notice of Disagreement challenging this determination, nor did he submit new evidence and material evidence within one year of its promulgation. Thus, the September 19, 2005 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of “error.” It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory 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. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”; and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of his claims. At the time of the Board’s September 2005 decision, the Veteran sought service connection for “a nervous disorder,” which he contended was due to his service. The record shows that he had active service in support of Operation Iraqi Freedom from February 2004 to March 2005. Service treatment records (STRs) show that, on a March 3, 2005 Post-Deployment Health Assessment, the Veteran reported he was not engaged in direct combat but felt in great danger of being killed; he did not report seeing anyone wounded, killed, or dead during deployment. VA received his claim for service connection for “a nervous disorder” soon after service separation in May 2005. See VA Form 21-4138 (May 2005). On VA examination May 27, 2005, the examiner reported no conceded stressors for PTSD. See VA Examination, dated May 27, 2005. The Veteran reported mental health counseling at the Vet Center, and the notes from his previous mental health visit with a VA health care provider. The examiner reported that after going through the criteria for PTSD, the veteran did not “meet criteria B, C, D, of PTSD” at that time. The Veteran was diagnosed with adjustment disorder with depressed and anxious mood and was noted to have severe psychosocial stressors. An August 2005 letter from his Vet Center provider indicated the Veteran had had received care from May 3, 2005 to July 11, 2005. See Third Party (3P) Correspondence, dated August 5, 2005. The Veteran reported having trouble adjusting from high-stressed war zone to slow civilian life. He admitted to depression with some suicidal ideation, impatience, and sleeping problems due to “stupid dreams.” The provider found the Veteran to be “most in need of counseling to cope with his return home, process his combat zone experiences, and deal with the depressive nature of the job market vv his age and skills.” He was also counseled to seek service connection for his leg and other service connected conditions. The RO denied the Veteran’s claim in a September 2005 rating decision because the Veteran’s condition neither occurred in nor was caused by service. PTSD was not addressed in the September 2005 rating decision, nor was it a diagnosed condition at the time of the decision. In his motion, the Veteran’s attorney essentially argues that the Board misapplied 38 C.F.R. § 3.304(f) in its September 2005 decision. See 3P Correspondence, dated October 6, 2014. He contends that “the Veteran’s treating doctors have long diagnosed him with PTSD,” referencing a September 23, 2014 disability benefits questionnaire. The attorney contends that “repeated fear of IEDs while performing your duty, in a combat environment is absolutely a stressor,” which was not before the adjudicator as they were not before the examiner. Finally, the Veteran’s attorney argues that “it can only be assumed this (evidence of anxiety and depression less than two months after service) was not the first instance of these symptoms, just the first time the Veteran sought treatment.” Therefore, it is undebatable that the Veteran should have been granted service connection for his psychiatric disorder. The Board disagrees. Again, under the applicable regulations, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 20.1403(c). Turning to the regulations in effect at that time, 38 C.F.R. § 3.304(f), stated that “service connection for posttraumatic stress disorder required medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.” It is clear from this regulation that, regardless of the circumstances of the claimed stressor, service connection for PTSD required “medical evidence diagnosing the condition.” 38 C.F.R. § 3.304(f). While the Veteran’s attorney focuses on the existence of a combat stressor, the existence of a stressor is merely one component of a diagnosis for PTSD – notably criteria A. See DSM VI. The May 2005 VA examiner noted that the Veteran did not meet criteria B, C, and D for a diagnosis of PTSD. Neither VA of Vet Center treatment records provided a diagnosis of PTSD. Additionally, medical professionals did not connect the Veteran’s anxiety or depression to his service but rather to difficulty transitioning back to civilian life after active duty. The Board cannot see how the RO’s finding in September 2005 that the Veteran’s claimed stressor was neither occurred in nor was caused by service was undebatably incorrect or was undebatably a misapplication of 38 C.F.R. § 3.304(f). The Veteran’s attorney argued that, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), “the fact that the Veteran filed a claim for a nervous disorder and not PTSD is irrelevant.” This argument is not supported by the text of the regulation. Review for CUE in a prior decision must be based on the record and law that existed when that decision was made. 38 C.F.R. § 20.1403. Clemons had not yet been heard in 2005. Additionally, Clemons does not change the DSM criteria for a diagnosis of PTSD. To the extent that the attorney argues that a May 26, 2005 nursing note showing a positive PTSD comports with a finding of CUE in the September 19, 2005 rating decision, the Board disagrees. This evidence was not before adjudicators at the time of the prior rating decision. It was associated with the claims file in 2012, many years later. Moreover, even were it before the adjudicators, it is not undebatable that this evidence would result in a grant of service connection for PTSD because a positive PTSD screen is a much lower standard than a diagnosis consistent with the DSM. In this regard, it cannot be said that adjudicators committed CUE by concluding that the record failed to establish a diagnosis other than adjustment disorder with depression and anxiety and that this disability was unrelated to the Veteran’s active service. The CUE motion before the Board appears to be centered on the argument that adjudicators misapplied 38 C.F.R. § 3.304(f) in its September 2005 rating decision. It further appears that the attorney would like the Board to weigh the evidence differently from how it was originally weighed by adjudicators in September 2005. This is essentially a disagreement as to how the facts were weighed or evaluated, which cannot support a finding of CUE in an earlier decision. 38 C.F.R. § 20.1403(d); see also Russell, 3 Vet. App. at 313 (“The claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated.”). Therefore, in view of the above discussion, the Board finds that the criteria for revision or reversal on the grounds of CUE are not met. Accordingly, the motion is denied. 2. Entitlement to service connection for an acquired psychiatric disorder to include PTSD. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110 , 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. §3.303. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a medically, established link between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The current version of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association’s Diagnostic and Statistical Manual, Fifth Edition (DSM-V). If a veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to “fear of hostile military or terrorist activity,” then the veteran’s testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony should be buttressed by credible supporting evidence. Furthermore, service department records should support, and not contradict, the claimant’s testimony regarding non-combat stressors. See Doran v. Brown, 6 Vet. App. 283 (1994). The Veteran contends that he has PTSD related to active service, and specifically fear of improvised explosive devices (IEDs) while driving over 30,000 miles across Iraq while on active duty. The Board concludes that the preponderance of the evidence is against service connection for PTSD. A confirmed diagnosis of PTSD is not shown in service or soon after service. To the extent medical professionals have diagnosed the Veteran with PTSD, the diagnosis is not shown to be in accordance with 38 C.F.R. § 4.125 (Diagnosis of Mental Disorder). Also, a positive screen for PTSD is not the equivalent of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125, and is devoid of any indication of disability related specifically to an in-service event. A review of the record discloses that the in-service and post-service VA treatment records are silent for PTSD. A May 2005 VA examination report reflects a diagnosis of adjustment disorder with depressed and anxious mood. At this exam, the Veteran reported suicidal ideation a month before, irritability, problems with anger, and quitting his job. The examiner found that the Veteran did “not meet criteria B, C, D, of PTSD at this time.” In other words, the Veteran did not present symptoms that conformed to the criteria at that time for PTSD. An August 2005 treatment summary for the Vet Center reports no evidence of a typical PTSD stressor or symptoms from the war. VA treatment records indicate that the Veteran received treatment for depressive disorders. Multiple associated PTSD screening were negative with the exception of a May 26, 2005 nurses note. At the same time, the depression screen was positive. However, there is no contemporaneous medical evaluation for PTSD associated with the positive screen. The PTSD screen is not consistent with a medically diagnosing PTSD for VA compensation purposes as it is not in accordance with 38 C.F.R. § 4.125. A May 2014 VA examination diagnosed unspecified depressive disorder with anxiety. The examiner noted that the Veteran did not reported a stressor that met Criteria A or other sufficient symptomatology to meet the other diagnostic criteria for a diagnosis of PTSD in accordance with either the DMS-IV or DSM-V. The Board has considered the September 2014 Disability Benefits Questionnaire (DBQ) submitted by the Veteran from a physician, which reflects diagnoses for major depressive disorder (MDD) and PTSD. The Veteran was noted to have hypervigilance, hyper-alertness, startle response, intrusive thoughts, nightmares, flashbacks, and avoidance. While the report lists symptoms, the examination report shows no indication that the objective criteria for diagnosing PTSD under DSM-V were considered or utilized. Therefore, the Board finds that the opinion has diminished probative value as it failed to diagnose whether the Veteran met the criteria for PTSD in accordance with the DSM-V as required by VA regulations. The Board has further considered an October 2014 private psychological consultation report. Therein, the clinician concluded that the Veteran’s background and symptomatology was consistent with that documented in the record; and that, while diagnosis of an adjustment disorder was likely appropriate upon the Veteran’s return from Iraq, he no longer met the criteria. Instead, the clinician diagnosed PTSD due to exposure to sniper fire, and rocket and mortar attacks. By history, the Veteran had been shot at and viewed by civilians as the enemy though he was there to protect them. Though the examiner references the DSM-V, the opinion contains no discussion or explanation as to how the Veteran’s symptoms meet the diagnostic criteria. Additionally, no reference is made to the Veteran’s previous reports regarding stressors or conflicting, contemporaneous mental health diagnoses. Therefore, the opinion has diminished probative value. The Board finds the October 2014 opinion to lack probative value due to its reliance on unsubstantiated facts and failure to provide sufficient information to show his diagnosis conformed to the American Psychiatric Association’s DSM-V Standards. The Board observes that the Veteran’s history appears to have evolved in order to bolster his VA disability claim. Notably, he reported the he had not engaged in direct combat on his post-deployment health assessment. He later reports fear of IEDs. Subsequently, he reports exposure to sniper fire, rocket fire, and mortar attacks. Given the progression described, the Board finds that the Veteran’s PTSD stressor statements are not persuasive. Also, to the extent that the October 2014 psychologist relied on these statement, the medical opinion is founded on an unsubstantiated account and, thus, the medical opinion is further compromised and has little probative value. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) (observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrence(s) described); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board is not bound to accept a physician’s opinion when it is based exclusively on the recitation of a veteran or other claimant). A May 2014 VA medical opinion obtained to clarify the medical evidence of record reflects as follows. The clinician noted that October 2014 and January 2015 VA mental health records diagnosed unspecified depressive disorder. The examiner concluded that both the September and October 2014 private opinions failed to establish a PTSD diagnosis because neither discuss the diagnostic elements needed to establish the diagnosis. The clinician explained that: It is not clear what A criteria exactly is, how it happened, proximity to claimed stressor, etc. Reporting of B through F criteria is not clear in those reports for who frequency, severity, duration, and to what this is related to stressor wise. The veteran does not exhibit a diagnosis of PTSD that is military related. Most recent evaluations at VA do not show PTSD as well. The Veteran is competent to report his symptoms and his spouse is competent to report her observations of the Veteran. Also, the Veteran is competent to report his stressful experiences in service. However, neither the Veteran nor his spouse is not competent to provide a diagnosis for PTSD, related to an in-service event as this is a medical determination that requires knowledge of diagnostic criteria and nomenclature associated with mental disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). See also, 38 C.F.R. § 4.125. Thus, the lay evidence has no probative value as to the presence of a confirmed diagnosis of PTSD in accordance with 38 C.F.R. § 4.125. On balance, the weight of the evidence is against the claim. A diagnosis of PTSD in accordance 38 C.F.R. § 4.125(a) has not been presented. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 3. Whether new and material evidence has been presented to reopen the previously denied claim for service connection for a nervous disorder with depressed and anxious mood. A claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Service connection for an acquired psychiatric disorder, claimed as a “nervous disorder” and diagnosed as adjustment disorder with depressed and anxious mood, was last denied in a September 2005 rating decision. The Veteran was notified of the decision and his appellate rights in a September 2005 letter. He did not appeal the decision or submit new and material evidence within one year of the date of its mailing. Consequently, the September 2005 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Board finds that new and material evidence has been submitted to reopen the claim. The September 2005 rating decision denied service connection for adjustment disorder with depressed and anxious mood because it found that STRs were negative for treatment of a nervous condition or adjustment disorder during active duty service, and there was no evidence the condition occurred in or was caused by service. The RO also noted that adjustment disorder is not one of the diseases cited in 38 C.F.R. § 3.309(a) for service connection on a presumptive basis. The evidence of record in September 2005 consisted of the following: service treatment records, treatment records from the Lincoln Vet Center, and a VA examination. Since the Veteran’s claim for service connection for a psychiatric disorder was last denied in the September 2005 decision, he has provided lay evidence regarding the circumstances of his service and his post-service symptoms and treatment. Additional VA and private post-service treatment records reflecting psychiatric treatment and diagnoses for conditions that include unspecified depressive disorder, major depressive disorder, and anxiety disorder. The recent evidentiary submissions are new and relates to an unestablished fact necessary to substantiate the claim, namely whether his current psychiatric disorder occurred in nor was caused by service. Therefore, the Board finds that new and material evidence has been received to reopen the claim, which is now more broadly characterized as a claim for service connection for an acquired psychiatric disorder (other than PTSD). Accordingly, the petition to reopen is granted. 4. Entitlement to a rating higher than 30 percent for hypothyroidism The Veteran contends that a rating in excess of 30 percent is warranted for hypothyroidism. The Board concludes that the preponderance of the evidence is against a rating in excess of 30 percent. Neither the lay nor the medical evidence more nearly reflect the criteria for a higher rating. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7903. The Veteran’s hypothyroidism is currently rated as 30 percent disabling under DC 7903. Under this code, a 10 percent rating is warranted for fatigue or when continuous medication for hypothyroid control is required. A 30 percent rating is warranted when there is evidence of fatigue, constipation, and mental sluggishness due to hypothyroidism. A 60 percent rating is assigned when the disability causes muscular weakness, mental disturbance, and weight gain, and a 100 percent rating is assigned when the disability causes cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance, bradycardia, and sleepiness. 38 C.F.R. § 4.119, DC 7903. In light of the conjunctive “and” under this diagnostic code, all criteria under a specific rating must be met to establish entitlement to that rating. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007); cf. Johnson v. Brown, 7 Vet. App. 95, 97 (1994) (holding that “or” in the rating criteria shows that each is an independent basis for granting that rating). The Board finds that a rating higher than 30 percent is not warranted at any point during the period of appeal. A January 2015 VA examination reflects that hypothyroidism was stable on medication. The Veteran had not had a radioactive iodine treatment, surgery, or any other type of treatment for his thyroid condition. He reported that he had had no problems related to his hypothyroidism but had fatigue due to his psych meds. He did not have any findings, signs, or symptoms attributable to his hypothyroidism. The Veteran’s neck was normal with no palpable thyroid enlargement or nodules. The record on appeal establishes that the Veteran experienced weight gain and loss and fatigue because of changes in his psychiatric medications and his lymphoma. The Veteran suffered from chronic constipation and depression. The Board finds that the record on appeal does not demonstrate the requisite manifestations for a rating higher than 10 percent. For a 30 percent rating, there must be evidence of fatigue, constipation, and mental sluggishness due to hypothyroidism. Here, neither the lay nor the medical evidence demonstrates fatigue or mental sluggishness due to the thyroid disorder. As such, the criteria for a 30 percent rating have not been met or more closely approximated. The Board acknowledges the report of weight gain in the record and fatigue in the January 2015 VA examination, but notes that these are not attributed to the Veteran’s hypothyroidism. The Veteran has not been found, nor has he alleged, that he has muscular weakness, mental disturbance, and weight gain due to his thyroid condition to warrant a 60 percent rating. The Board accepts that the Veteran is competent to report that his disability is worse. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the evidence does not more nearly reflect the criteria required for a higher evaluation at any time during this appeal. 38 C.F.R. § 4.7. Generally, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Although the Veteran believes he meets the criteria for a higher disability rating, the medical findings do not meet the schedular requirements for an increased evaluation as they do not show muscular weakness, mental disturbance, and weight gain, which is required for a 60 percent evaluation under the schedule. To the extent that the Veteran may believe that his hypothyroidism warrants the assignment of a higher evaluation, the Board finds he has not asserted the presence of the symptoms required by the schedule to assign a higher evaluation. The Board has considered whether a higher or separate rating may be assigned under any other potentially applicable provision, but finds that there is no basis to assign a higher or separate evaluation under any other schedular criteria. Also, the Board finds that a staged disability rating is not warranted as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a higher rating from that assigned. See Fenderson v. West, 12 Vet. App. 119, 126 (2001); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 5. Entitlement to a compensable prior to July 29, 2014 and in excess of 10 percent therefrom for marginal zone lymphoma. The Veteran contends that a compensable prior to July 29, 2014 and in excess of 10 percent therefrom for marginal zone lymphoma is warranted because there is no cure for marginal zone lymphoma. The Board concludes that the preponderance of the evidence is against the claim. The evidence does not more nearly reflect the criteria for a higher rating. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.59, 4.117, DCs 7700 and 7716. The Veteran’s marginal zone lymphoma is rated analogously under DCs 7703 and 7700. Under DCs 7703 (leukemia), for an active disease of the hemic and lymphatic systems or during a treatment phase, a 100 percent disability rating is appropriate. 38 C.F.R. § 4.117. Otherwise, the disability should be rated as anemia (DC 7700) or aplastic anemia (DC 7716), whichever would result in the greater benefit. Id, DC 7703. Under DC 7700, anemia manifested with hemoglobin 10gm/100ml or less, asymptomatic warrants a noncompensable rating; hemoglobin 10gm/100ml or less with findings such as weakness, easy fatigability or headaches, a 10 percent rating; hemoglobin 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath, a 30 percent rating; hemoglobin 7gm/100ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months), a 70 percent rating; and hemoglobin 5gm/100ml or less, with findings such as high output congestive heart failure or dyspnea at rest, a 100 percent rating. 38 C.F.R. § 4.117, DC 7700. [NOTE: 100 milliliters (ml) = 1 deciliter (dL).] Under DC 7716, aplastic anemia requiring continuous medication for control warrants a 10 percent disability rating; requiring transfusion of platelets or red cells at least once per year but less than once every three months, or; infections recurring at least once per year but less than once every three months, a 30 percent rating; requiring transfusion of platelets or red cells at least once every three months, or; infections recurring at least once every three months a 60 percent rating; and requiring bone marrow transplant, or; requiring transfusion of platelets or red cells at least once every six weeks, or; infections recurring at least once every six weeks, a 100 percent rating. 38 C.F.R. § 4.117, DC 7716. In this case, the Veteran’s hemoglobin count has not measured less than 13.1 gm/100ml at any time during the appeal period. The records shows that the Veteran underwent 4 weeks of treatment for marginal zone lymphoma in August 2011 before being placed on 2 years of maintenance treatment. CT scans done in May 2012 reflect that lymphoma had resolved. In August 2012, the Veteran’s physician noted that radiographically his lymphoma is in remission. The Veteran completed treatment in August 2013. Essentially, the medical evidence of record indicates that the condition is in remission with no recurrence. Service connection for marginal zone lymphoma was granted with an evaluation of 100 percent through February 1, 2014, the first of the month six months after the last treatment for his condition, at which time a noncompensable rating was effective. See Rating Decision, dated October 15, 2014. Pathology reports show hemoglobin numbers as follows: DATE g/dL (100 ml) 11/12/2013 13.8 03/04/2014 14.4 04/02/2014 14.6 07/29/2014 13.1 03/25/2015 13.9 See CAPRI, dated October 10, 2014, p. 1, and CAPRI, dated June 9, 2015, p. 23. The Veteran had a bronchoscopy in April 2015 due to shortness of breath and a cough which were potentially indicative of a recurrence of his lymphoma. See CAPRI, dated June 9, 2015, p. 23. The Veteran was diagnosed with hyperemic mucosa. Id at p. 13. At no time during the period on appeal did the Veteran’s hemoglobin count measure 10gm/100ml or less to warrant even a noncompensable rating for anemia under DC 7700. The Board notes the Veteran’s reports of night sweats and fatigue. However, compensable ratings under DC 7700 have a threshold requirement of a hemoglobin count of 10g/ml or less. 38 C.F.R. § 4.117, DC 7700. The Board acknowledges argument that remission is not a cure. However, the plain language of the applicable rating criteria accounts for an active disease in treatment and measurable residuals after the disease is no longer active. The Veteran reported small spots found on his lungs and too small to confirm a diagnosis via biopsy which were being closely monitored for growth. See Third Party Correspondence (June 2015). Although the attorney argues that his rating should be increased as the evidence is not certain whether the disease is in remission, this is no supported by the VA rating schedule as a basis for a higher rating. The Board accepts that the Veteran is competent to report that his disability is worse. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the evidence does not more nearly reflect the criteria required for a compensable evaluation from February 1, 2014, and higher than 10 percent from July 29, 2014, at any time during this appeal. 38 C.F.R. § 4.7. Generally, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Although the Veteran believes he meets the criteria for a higher disability rating, the medical findings do not meet the schedular requirements for a compensable evaluation as they do not show hemoglobin 10gm/100ml or less with findings such as weakness, easy fatigability or headaches, which is required for a compensable evaluation under the schedule. To the extent that the Veteran may believe that his marginal zone lymphoma has returned and, thus, warrants the assignment of a compensable evaluation from February 1, 2014, and higher than 10 percent from July 29, 2014, the Board finds that he is not competent to provide a medical opinion on such as he lacks the requisite medical expertise-it is noted that the amount of hemoglobin in the blood would not be susceptible to lay observation. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007). The Board has considered whether a higher evaluation may be assigned under any other potentially applicable provision, but finds that there is no basis to assign a compensable evaluation under any other schedular criteria. As the Veteran does not require continuous medication for control of anemia, DC 7716 is not for application. The percentage ratings contained in the Rating Schedule are intended to compensate for impairment in earning capacity and, here, no such impairment from marginal zone lymphoma or its residuals is demonstrated by the evidence of record. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. On balance, the weight of the evidence is against the claim. Also, there is no basis to further stage the disability rating. See Fenderson v. West, 12 Vet. App. 119, 126 (2001); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 6. Entitlement to service connection for an acquired psychiatric disorder (other than PTSD), to include as secondary to hypothyroidism and/or marginal zone lymphoma, is remanded. The Veteran has diagnoses of unspecified depressive disorder, major depressive disorder, anxiety disorder. The Veteran was diagnosed with adjustment disorder soon after separation. His private physician notes that psychiatric symptoms far exceeded the 6-month criteria necessary for an adjustment disorder diagnosis. A VA examination is necessary to identify the all current acquired psychiatric disorders and address the etiology of any disorders shown. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records dated from June 2015 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Schedule the Veteran for an appropriate examination for an opinion on whether he meets the diagnostic criteria for any acquired psychiatric disability (other than PTSD). For all diagnoses, the examiner is then asked whether it is as likely as not (50 percent or greater probability) that the diagnosis is related to service. The examiner is also asked to opine whether any diagnosed acquired psychiatric disability is proximately due to or the result of a service-connected disability. All opinions should be accompanied by explanatory rationale that cites to evidence in the record and/or medically accepted theory and research. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. E., Associate Counsel