Citation Nr: 18161022 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-60 281 DATE: December 28, 2018 ORDER 1. Entitlement to service connection for bilateral hearing loss is denied. 2. Entitlement to service connection for tinnitus is granted. 3. Entitlement to a rating in excess of 20 percent for a right shoulder disability is denied. 4. Entitlement to a rating in excess of 20 percent for low back strain is denied. 5. Entitlement to a rating in excess of 50 percent for PTSD prior to April 26, 2017 is denied; a 70 percent rating for PTSD is granted from April 26, 2017, subject to the regulations governing payment of monetary awards. FINDINGS OF FACT 1. The Veteran is not shown to have a hearing loss disability in either ear. 2. It is reasonably shown that the Veteran’s tinnitus became manifest in service and has persisted since. 3. At no time under consideration is the Veteran’s right (major) shoulder motion shown to have been limited to midway between side and shoulder level; ankylosis of scapulohumeral articulation, impairment of the humerus, and impairment of the clavicle or scapula are not shown. 4. At no time under consideration is the Veteran’s back disability shown to have been manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less or unfavorable ankylosis of the entire thoracolumbar spine; separately ratable neurological manifestations are not shown. 5. Prior to April 26, 2017, occupational and social impairment with deficiencies in most areas due to PTSD symptoms was not shown; from that date the PTSD disability picture is reasonably best characterized as occupational and social impairment with deficiencies in most areas; total occupational and social impairment due to PTSD symptoms is not shown. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385. 2. Service connection for tinnitus is warranted. 38 U.S.C.§§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. A rating in excess of 20 percent for a right shoulder disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Codes) 5200-5203. 4. A rating in excess of 20 percent for a low back disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.71a, Code 5237. 5. A rating in excess of 50 percent for PTSD is not warranted prior to April 26, 2017; from that date a 70 percent, but not higher, rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2000 to May 2000, from December 2003 to March 2005 and from October 2007 to January 2009 and had additional Army Reserve service. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision which denied service connection for bilateral hearing loss and tinnitus and continued 10 percent ratings, each, for right shoulder and low back disabilities and a 30 percent rating for PTSD. An interim ( November 2016 ) rating decision increased the ratings for the right shoulder disability and the low back disability to 20 percent, each, and increased the rating for PTSD to 50 percent, all effective September 11, 2015 (the date the Veteran’s claim was received). An issue of entitlement to a temporary total rating for hospitalization or convalescence for the Veteran’s right shoulder disability was previously before the Board. A November 2016 rating decision granted a temporary total (convalescence) rating for the right shoulder disability from November 11, 2015 to January 1, 2016. The Veteran did not express disagreement with the decision or included it on his VA Form 9; therefore, that matter is resolved, and that period is not for consideration. The Veteran submitted a Form 9 dated June 21, 2018 for the issues of service connection for black lung disease and a left ankle disability and did not request a hearing before the Board. His attorney notes that although the Statement of the Case (SOC) was issued in March 2017 (rendering the Form 9 untimely), he and the Veteran had not received it. The matter of whether a substantive appeal in response to the March 2017 SOC was timely has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it; it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b); see 79 Fed. Reg. 57,660. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a 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). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A disease first diagnosed after service may be service connected if all the evidence, including pertinent service records, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases (to include sensorineural hearing loss (SNHL) and tinnitus as organic diseases of the nervous system) may be presumed to be service-connected if manifested to a compensable degree within a specified period postservice (one year for SNHL and tinnitus). 38 U.S.C. §1112; 38 C.F.R. §§ 3.307, 3.309. For diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). For VA compensation purposes, hearing loss disability is defined as: “when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. Hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant’s period of active military service for service connection for such disability to be granted. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A claimant who seeks to establish service connection for a hearing loss disability must show, as required with any claim of service connection, that a current hearing disability is the result of an injury or disease incurred in service. 1. Service connection for bilateral hearing loss is denied. The Veteran seeks service connection for bilateral hearing loss as due to exposure to hazardous levels of noise during service. His DD 214 reflects that his Military Occupational Specialty (MOS) was military police. He served in combat and received a Silver Star. It may reasonably be conceded that he was exposed to combat noise trauma in service. A June 2008 service treatment record (STR) notes that audiometry showed mild hearing loss at the 4000 hertz level. On September 2016 VA audiology examination, the Veteran described exposure to various noise in service (with hearing protection available). He reported difficulty understanding conversation, especially in crowded rooms. Audiometry revealed that puretone thresholds, in decibels, were: 500 1000 2000 3000 4000 R 20 20 20 20 25 L 20 20 25 20 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left. The examiner noted that the Veteran had normal hearing bilaterally. Postservice records do not include any further official audiometry reports. The threshold question here, as in any claim seeking service connection, is whether the Veteran has the disability he seeks to have service- connected, a hearing loss disability in either or both, ear(s). As is noted above, hearing loss disability is defined by regulation (38 C.F.R. § 3.385), and must be established by audiometry/speech discrimination testing specified by regulation (38 C.F.R. § 4.85). VA examination audiometry scheduled in connection with this claim did not find a hearing loss disability in either ear (by puretone threshold testing or by speech discrimination testing). The Veteran has not submitted any report of audiometry showing (or suggesting) that he has a hearing loss “disability,” and has not identified any medical provider who found him to have such disability. While he is competent to report that he has difficulty hearing, he is not competent to establish by his own observation that he has a hearing loss disability as defined in 38 C.F.R. § 3.385 (that requires audiometric testing). As the Veteran is not shown to have a hearing loss disability in either ear, he has not presented a valid claim of service connection for such disability. See 38 U.S.C. § 1110; also see Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, service connection for bilateral hearing loss must be denied. (The Veteran is advised that future evidence of a hearing loss disability may present a basis for reopening this claim.) 2. Service connection for tinnitus is granted. As noted above, it is not in dispute that the Veteran was exposed to hazardous levels of noise in service. Furthermore, the diagnosis of tinnitus is established by self-reports (by the person experiencing it), and is generally incapable of objective verification. Thus, the Veteran is competent to establish by his own accounts that he has (and has had) tinnitus. In his October 2015 application for VA benefits, he reported that he has tinnitus. It is not in dispute that he has tinnitus. What remains necessary to substantiate this claim is evidence of a nexus between the Veteran’s current tinnitus and his service/exposure to noise in service. The Veteran’s STRs do not note any complaints or diagnosis of, or treatment for, tinnitus. A June 2015 private treatment record notes that the Veteran denied “ringing in his ears.” On September 2016 VA examination the Veteran reported intermittent tinnitus in both ears. He described it as “ringing/buzzing” for about 30 seconds that occurs a couple times per week and is followed by a sharp pain near his earlobe. He reported noticing the tinnitus since 2004 (during service). The examiner opined that it was less likely than not that the Veteran’s tinnitus resulted from his military service, explaining that there was an absence of acoustic damage and there were no complaints of tinnitus noted in his STRs. Because tinnitus (as an organic disease of the nervous system) is listed as a chronic disease in 38 C.F.R. § 3.309(a), service connection may be established by showing continuity. See 38 C.F.R. § 3.303(b). As tinnitus was not reported in service, and is not shown to have been manifested to a compensable degree in the Veteran’s first postservice year, what the Board must decide is the credibility of his accounts that his tinnitus has been present since service. While there is no contemporaneous notation of tinnitus during service or in the years immediately following, it is not implausible that he may have noted tinnitus in service/soon thereafter, but it was not so significant as to compel him to seek medical attention. The Board notes that a June 2015 treatment record indicates the Veteran denied “ringing in his ears;” that is not inconsistent with the September 2016 examination report of an intermittent tinnitus. The Board finds no reason to question the credibility of the Veteran’s accounts of onset of tinnitus in service, and persistence of tinnitus since; they are reasonably consistent with the circumstances of his service, and are not directly contradicted by any clinically recorded data. While the VA examiner’s opinion regarding the etiology of the tinnitus was against the Veteran’s claim (citing to the absence of acoustic damage in service), the Board finds the rationale provided less than persuasive. The absence of a hearing loss disability at separation does not exclude the possibility that tinnitus may have then been present, but not reported because it was considered insignificant. The examiner is not shown to have adequately considered the Veteran’s reports that his tinnitus began during service and has persisted since. Resolving reasonable doubt in the Veteran’s favor as required (see 38 U.S.C. § 5107; 38 C.F.R. § 3.102), the Board finds that the Veteran’s tinnitus became manifest in service and has persisted since. Hence, service connection for tinnitus is warranted. Increased ratings Disability ratings are based on average impairment in earning capacity resulting from a disability, and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). “Staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period. 38 C.F.R. §§ 3.157, 3.400(o)(2). Consequently, (while submissions of evidence and argument in support of the claims for increased ratings include records from much earlier, the period for consideration is from September 11, 2014 (one year prior to the September 11, 2015 date of claim) to the present. 3. A rating in excess of 20 percent for right shoulder tendonitis is denied Shoulder disabilities are rated under Codes 5200 to 5203. Code 5200 contains the criteria for rating ankylosis of scapulohumeral articulation (the scapula and humerus move as one). Under Code 5201, limitation of (major) arm motion warrants a 20 percent rating when limited at the shoulder level and a 30 percent rating when midway between the side and shoulder level. Codes 5202 and 5203 contain rating criteria regarding other impairment of the humerus (malunion, recurrent dislocation, fibrous union, nonunion, and loss of head) and impairment of the clavicle or scapula (malunion, nonunion, and dislocation), respectively. [Normal forward flexion of a shoulder is from 0 to 180 degrees, normal abduction of a shoulder is from 0 to 180 degrees, normal external rotation is from 0 to 90 degrees, and normal internal rotation is from 0 to 90 degrees.] 38 C.F.R. § 4.71; and Plate I. In determining the degree of limitation of motion, the provisions of 38 U.S.C. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. A March 2015 VA treatment record notes that the Veteran reported right shoulder pain with certain movements, popping, and clicking. Examination found symmetrical range of motion in both shoulders; forward flexion was to 160 degrees, abduction to 160 degrees, and external rotation was to 45 degrees. Internal rotation was to L1 on the right and T10 on the left. X-rays showed no evidence of fracture, lesions, or masses. The impression was right shoulder impingement. An April 2015 right shoulder MRI showed normal bone marrow and cartilage, acromioclavicular joint, rotator cuff, and biceps tendon; a labral tear was not shown. A June 2015 VA treatment record notes that the Veteran reported right shoulder pain with certain movements, popping, and clicking. Examination of the right shoulder revealed no erythema, lesions, or masses, and there was no swelling about the shoulder. There was bicep tenderness, and the shoulder was neurovascularly intact with normal sensation, pulses, color, and capillary refill. Examination found symmetrical range of motion in both shoulders; bilateral forward flexion was to 160 degrees, abduction to 160 degrees, and external rotation was to 45 degrees. Internal rotation was to L1 on the right and T10 on the left. X-rays showed no evidence of fracture, lesions, or masses. The impression was right shoulder impingement. A November 2015 private treatment record notes that the Veteran underwent right shoulder diagnostic arthroscopy with debridement of partial superior labral anterior to posterior tear and repair of the biceps labrum subacromial bursectomy with acromioplasty. The postoperative diagnosis was right shoulder superior labral anterior to posterior tear with subacromial bursitis. On September 2016 VA shoulder examination, the Veteran reported right shoulder pain, difficulty sleeping on his right side, and difficulty threading belt loops. On examination, right shoulder range of motion testing showed forward flexion was to 145 degrees, abduction was to 95 degrees, internal rotation was to 40 degrees, and external rotation was to 70 degrees. On repetitive use testing, there was additional loss of function or range of motion due to pain. Forward flexion was to 140 degrees, abduction was to 90 degrees, internal rotation was to 35 degrees, and external rotation was to 65 degrees. There was some additional functional impairment due to weakness, fatigability, incoordination, or flare-ups. Forward flexion was to 135 degrees, abduction was to 90 degrees, internal rotation was to 30 degrees, and external rotation was to 60 degrees. Muscle strength testing was normal; there was no ankylosis. Hawkins’ impingement, empty-can, and lift-off subscapularis testing was positive. X-rays showed residuals of right shoulder arthroscopic surgery. The examiner opined that repetitive pushing and pulling and sustained overhead reaching would be more difficult for the Veteran. Based on this evidence, a November 2016 rating decision granted a 20 percent rating effective September 11, 2015, the date the Veteran’s claim for increase was received. A 100 percent convalescence rating was assigned from November 11, 2015 to January 1, 2016, and a 20 percent was assigned from January 1, 2016. The Veteran’s right (major) shoulder disability has been assigned a 20 percent rating under Code 5201 (for limitation of major shoulder motion at the shoulder level). The applicability of Codes 5200, 5202, and 5203 has been considered. However, as the evidence of record does not show the pathology or separate and distinct symptoms required for ratings under such Codes (ankylosis, impairment of the humerus, or impairment of the clavicle or scapula) at any time during the evaluation period, the Board finds that those Codes do not have applicability in this matter (and will not be further discussed). At no time under consideration is the Veteran’s right shoulder disability shown to have been manifested by limitation of the arm to midway between the side and shoulder, so as to warrant the next higher (30 percent) rating, even with consideration of pain on motion. As was reported on range of motion testing in March and June 2015 VA treatment records and on September 2016 VA examination, the Veteran’s right arm motion has been to at least 145 degrees on forward flexion and to at least 95 degrees on abduction. Repetitive use testing showed some additional loss of function or range of motion, or additional functional impairment due to weakness, fatigability, incoordination, or flare-ups. 38 C.F.R. § 4.45. Throughout, the greatest limitation noted was in September 2016, when forward flexion was to 135 degrees and abduction was to 90 degrees (after repetitive testing). Therefore, a rating in excess of 20 percent for the right shoulder disability is not warranted. The preponderance of the evidence is against this claim. Therefore, the benefit of the doubt rule does not apply; the appeal in this matter must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. A rating in excess of 20 percent for low back strain is denied. The Veteran’s lumbar spine disability is rated under Code 5237 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula a 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, with combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, with muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the General Formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a. If a service connected spine disability includes intervertebral disc syndrome (IVDS) it may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Here, IVDS is not shown or alleged at any time. 38 C.F.R. § 4.71a. An October 2014 VA treatment record notes that the Veteran reported treatment with physical therapy, a TENS unit, epidural injections, and muscle relaxers, and that he still had frequent pain and/or stiffness on certain back movements. Morphine was prescribed sparingly in the past, with good results, but had caused constipation. On September 2016 VA examination, the Veteran reported middle and low central lumbar pain and that he has had no surgery or injections since his last rating. He attempted physical therapy at Mercy Hospital in Crystal City, Missouri in 2015 and had used a TENS unit, but did not like it. He also tried a lumbar corset and stopped using it because it did not help his pain. He reported less pain free range of motion during flare-ups. On physical examination, guarding, muscle spasm, and localized tenderness were noted that resulted in an abnormal gait. There was tenderness with palpation over the lumbar spine. There was no evidence of spinal ankylosis. Straight leg raise test was negative. Forward flexion was to 65 degrees, extension was to 20 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 20 degrees, and left and right lateral rotation were each to 25 degrees, with pain at each end of range of motion. After 3 repetitions, forward flexion was to 60 degrees, extension was to 15 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 15 degrees, and left and right lateral rotation were each to 20 degrees. Arthritis was not shown on X-rays. The diagnosis was lumbosacral strain. Based on this evidence, a November 2016 rating decision increased the rating for the low back disability to 20 percent rating effective September 11, 2015, when the claim for increase was received. Additional VA treatment records throughout the appeal period show symptoms largely similar to those found on the VA examination described above. The reports of the VA examination, treatment records, and lay statements, overall, do not show that symptoms of the Veteran’s lumbar spine disability at any time included forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine (the criteria for the next higher, 40 percent rating). On September 2016 VA examination, forward flexion of the spine was to 65 degrees; ankylosis was not noted. As the symptoms of the Veteran’s lumbar spine disability and associated impairment of function fall squarely within the parameters of the criteria for the 20 percent rating assigned, and never met (or approximated) the criteria for the next higher ratings under the General Formula, an increased rating under the General Formula criteria is clearly not warranted. Neurological manifestations may be separately rated under an appropriate Code. Here, the medical evidence does not show neurological manifestations of the lumbar spine disability. Neurologic evaluations have consistently been normal, with no evidence of radiculopathy; neurological manifestations were not noted or alleged. Therefore, a separate rating for neurological manifestations is not warranted. The preponderance of the evidence is against this claim, and the appeal in the matter is denied. 5. A rating in excess of 50 percent for PTSD prior to April 26, 2017 is denied; a 70 percent rating is granted for the PTSD from that date. Under the General Rating Formula for Mental Disorders (General Rating Formula), 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; and difficulty in establishing and maintaining effective work and social relationships. 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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 (ADLs) (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, Code 9411. An August 2014 VA mental health treatment record notes that the Veteran reported an anxiety level of 8 on a 1-10 severity scale with superimposed discrete episodes of more intense anxiety coupled with nausea, diaphoresis, and restlessness. The more intense episodes were often triggered by specific scents, noises, crowded settings, the classroom, driving, or enclosed areas. He reported chronic hypervigilance, difficulty in public settings, and that his mood fluctuated from happy to aggressive. He interacted with his wife, grandfather and a few veterans. He reported that he ate once a day, had a sporadic sleep pattern, experienced nightmares a few times a week, and had flashbacks a couple of times a week. On December 2015 VA PTSD examination, the Veteran stated that not much had changed since a previous VA examination. He noted that he did not believe his symptoms had increased, but that he disagreed with the findings on the previous examination, and had not then fully disclosed the extent of his symptoms. He reported that he maintained contact with a friend from service, and that they were going to see the new Star Wars movie, and that his relationship with his wife continued to be very good. He attended criminal justice classes; they were going well, and he often did well without studying. He was not working. The examiner noted symptoms of anxiety and chronic sleep impairment. The examiner also noted that the Veteran had attended very few mental health appointments since the previous examination (5 years prior), was not taking any psychiatric medication, and had not complied with psychotherapy treatment recommendations. On mental status examination, the Veteran was alert and oriented in all spheres; his speech was logical and goal directed, and there were no signs or reports of mania or psychosis. His hygiene was adequate, and he had full range of affect, which was overall euthymic although punctuated with dysphoric responses appropriate to topic. He reported that he avoided driving, discussing military events, crowds, and other related activities. He reported he stopped pursuing education in the medical field because of intrusive symptoms on seeing blood. He reported physiological and psychological reactivity in response to various cues, including loud noise and the smell of diesel fuel. He reported hypervigilant behavior in various situations (e. g. he carried knife at all times) and avoided situations due to associated affect. He reported changes in cognitions and mood since his discharge from service, including persistent anger, and changes in thoughts pertaining to trust and ability to recover. The examiner opined that the Veteran’s occupational and social impairment (with regard to all mental diagnoses) was best summarized as occupational and social impairment with reduced reliability and productivity. Based on this evidence, a November 2016 rating decision granted a 50 percent rating for the PTSD, effective September 11, 2015, the date the claim for increase was received. On April 26, 2017, PTSD disability benefits questionnaire evaluation, the Veteran reported that he had been married for five years, lived in a home with his wife, and was socially isolated and withdrawn. He did not take psychiatric medication, saw a private medical doctor as needed, and admitted past participation in VA individual and group therapy. He reported that he could no longer enjoy the simplest of activities. The examiner noticed the Veteran endorsed symptoms of auditory and visual hallucinations (hearing noise and seeing shadow figures when no one is present), chronic sleep impairment, nightmares, disturbances of motivation and mood, sense of shortened future, exaggerated startle response, hypervigilance, impairment of short and long-term memory loss (to include memory loss for names of relatives), difficulty establishing and maintaining relationships, difficulty adapting to stressful circumstances (including work), obsessional rituals, and difficulty maintaining minimal personal hygiene. On mental status examination, the Veteran’s attention was normal, his concentration was variable, and he reported increasing difficulty with short and long-term memory. His speech flow was normal, and he reported hallucinations. The Veteran’s fund of knowledge, intellectual abilities, capacity for abstraction, and judgment were below average. His mood was anxious and nervous, and his affect was restricted. It was noted that the Veteran showered infrequently and sometimes did not shower for a month. He reported psychological and physiological reactions to driving, certain TV shows, and fireworks because of their resemblance to his traumatic military experience. The provider indicated that the Veteran’s occupational and social impairment from all mental diagnoses was best summarized as occupational and social impairment with deficiencies in most areas. The provider opined that the Veteran would not be able to sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his PTSD. She explained that his chronic sleep issues, memory impairment, inconsistent mood, trust issues, anxiety, and poor interpersonal skills, would adversely affect employment. Lay statements in support of the Veteran’s claim, dated in February 2017, were received in May 2017. The Veteran’s wife reported that PTSD affected his ability to function effectively and appropriately. She related that he became easily confused by instructions, did not interact well with others, and did not care about personal hygiene (often going at least a week without showering). She also related that he forgot important things, and that when he panicked about small matters it took him hours to calm down. The Veteran’s grandfather reported that he forgets names of people he is close to, and has to be reminded who they are. He noted that the Veteran spends too much time playing [electronic] war games. He indicated that the Veteran easily got lost, often panicked, and when panic attacks occurred often called hoping to be calmed down. He related that the Veteran did not have friends or try to make friends, kept to himself, did not drive due to anxiety, and often would not shower or shave for days. January 2018 correspondence notes the Veteran’s re-award of a VA Vocational Rehabilitation subsistence allowance. Prior to April 26, 2017, the Veteran’s PTSD was rated 50 percent. At no time prior to that date is the disability picture of the Veteran’s PTSD one showing or suggesting occupational and social impairment with deficiencies in most areas (so as to warrant a 70 percent schedular rating). While he did not drive due to anxiety, he maintained contact with a friend from service, with whom he would attend movies; maintained good relationships with his wife and grandfather; and attended classes for criminal justice (often doing well without studying). See August 2014 treatment record and December 2015 examination report. Such level of responsible functioning (in his daily and domestic life, with family, and in the community, and participation in an educational program) is inconsistent with a finding of occupational and social impairment with deficiencies in most areas, and does not warrant a 70 percent schedular rating. From the April 26, 2017 date of a private DBQ evaluation (and supported by lay statements from his wife and grandfather, received the following month, dated in February), the Veteran’s PTSD is reasonably shown to present a disability picture consistent with occupational and social impairment with deficiencies in most areas, as contemplated by the criteria for a 70 percent rating. The DBQ and lay statements describe withdrawal, occasional neglect of hygiene, and memory loss. The private provider who completed the DBQ opined that the disability results in deficiencies in most areas. There is no contemporaneous competent (medical) evidence to the contrary. Significantly, the Veteran is not shown to have been receiving psychiatric treatment during this time. Total occupational and social impairment, which would warrant a 100 percent rating, is not shown. As noted, on April 2017 DBQ, a private provider opined that the Veteran’s occupational and social impairment (from all mental diagnoses) was best summarized as occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. While the private DBQ examiner notes that the Veteran can no longer enjoy the simplest of activities, and avoids such activities as driving, watching certain TV shows and fireworks because they remind him of war experiences, such observation (apparently based on the Veteran’s self-reports) are inconsistent with the Veteran’s grandfather’s report (which the Board has not reason to question-it was submitted in support of the claim) that the Veteran becomes engrossed in electronic war-games. As such games would logically more readily bring on recollection of wartime activities, the avoidance noted appears to be selective and limited. Similarly, reports that the Veteran is experiencing significant memory loss and neglects hygiene do not appear to be consistent with the notations when he is seen that he appears well-groomed and with his acceptance into and participation in a VA Vocational Rehabilitation program (and his self-report that he was doing well-without studying). Regarding neglect of hygiene the reports, essentially reported contemporaneously vary to such extent that they cannot all be accepted at face value. The Veteran’s self-report (the basis for the DBQ notation) of not showering for months is (unless such was restricted for a period due to, e.g., convalescence from shoulder surgery) self-serving and not credible, considering the reports by his wife that at times he did not shower for a week and his grandfather’s report of that he did not shower or shave for days. The Veteran’s level of functioning is inconsistent with a finding of total occupational and social impairment, and a schedular 100 percent rating is not warranted. The Board notes the Veteran’s attorney’s reference to the observation by the private DBQ examiner that due to his PTSD the Veteran would not be able to participate in gainful employment (considering whether that raises a question of entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU)). Notably, that observation was apparently made with a less that full familiarity of the Veteran’s record. That provider does not discuss (or express awareness) that the Veteran has been (to include both before and after the April 2017 DBQ) participating in a VA education/Vocational Rehabilitation program (the purpose of which preparation of an occupation consistent with the service-connected disabilities, and acceptance into which requires an assessment of feasibility that he will be employed upon completion). Notably, the Veteran (and his attorney on his behalf) have not submitted an application for a TDIU rating (required for processing of such claim); it is assumed that was because of his participation in Vocational Rehabilitation. Considering the foregoing, the Board finds that the matter of entitlement to a TDIU rating is not raised in the context of the instant claim for increase. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel