Citation Nr: 19128152 Decision Date: 04/11/19 Archive Date: 04/11/19 DOCKET NO. 17-50 248A DATE: April 11, 2019 ORDER Entitlement to service connection for kidney disease is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a cervical spine condition, to include as secondary to a service-connected right shoulder disability, is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to service-connected posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for heart disease, to include as secondary to service-connected PTSD is granted. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD is granted. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides is denied. Entitlement to service connection for left foot neuropathy, to include as due to exposure to herbicides is denied. Entitlement to service connection for right foot neuropathy, to include as due to exposure to herbicides is denied. Entitlement to an initial 70 percent disability evaluation for PTSD from June 11, 2014 is granted. Entitlement to a rating in excess of 70 percent for PTSD is denied. REMANDED Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that kidney disease began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that bilateral hearing loss and tinnitus began during active service, or is otherwise related to an in-service injury or disease. 3. The Veteran’s cervical spine condition is not secondary to service-connected right shoulder disability, and is not otherwise related to an in-service injury or disease. 4. The Veteran’s COPD, heart disease, and obstructive sleep apnea are secondary to service-connected PTSD. 5. The preponderance of the evidence is against finding that the Veteran’s diabetes mellitus and bilateral foot neuropathy began during active service, or are otherwise related to an in-service injury or disease, including as due to herbicide exposure. 6. Since June 11, 2014, the Veteran’s PTSD resulted in disability more nearly approximating occupational and social impairment with deficiencies in most areas, due to such symptoms as depressed mood, anxiety, suicidal ideation, and impaired impulse control. 7. Throughout the period on appeal, the Veteran’s PTSD did not cause total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for kidney disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a cervical spine condition as secondary to a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for chronic obstructive pulmonary disease as secondary to PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for service connection for heart disease as secondary to PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 7. The criteria for service connection for obstructive sleep apnea as secondary to PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 8. The criteria for service connection for diabetes mellitus, to include as due to herbicide exposure, are not met. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311. 9. The criteria for service connection for left foot neuropathy, to include as due to exposure to herbicides, are not met. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311. 10. The criteria for service connection for right foot neuropathy, to include as due to exposure to herbicides, are not met. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311. 11. The criteria for an initial rating of 70 percent since June 11, 2014 for PTSD are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.130, Diagnostic Code 9411. 12. The criteria for a 100 percent rating for PTSD are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to October 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in April 2014, August 2017, May 2018, and October 2018 by the Department of Veterans Affairs (VA) Regional Offices (RO). The Agency of Original Jurisdiction (AOJ) is currently Los Angeles, California. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. 1. Entitlement to service connection for kidney disease The Veteran contends that he is entitled to service connection for kidney disease. The Board concludes that, while the Veteran has a current diagnosis of kidney disease, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of kidney disease began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records are silent regarding any complaint of, treatment for, or diagnosis of a kidney condition. VA medical records from April 2014 note the Veteran was diagnosed with chronic kidney disease in November 2012. Treatment notes from October 25, 2017 show the Veteran was treated for acute kidney failure due to a recent worsening in creatinine. On October 26, 2017, lab reports indicated the Veteran’s kidney function had improved and an ultrasound was normal. The Veteran generally contends that his kidney disease is related to his military service but has not provided any additional information in support of this contention. The medical records show he was diagnosed with chronic kidney disease in 2012, 40 years after service discharge. The claims file does not contain any objective evidence that indicates the Veteran’s current diagnosis of kidney disease is etiologically related to his military service. As the preponderance of the evidence is against the claim, the claim of entitlement to service connection for kidney disease must be denied. 2. Entitlement to service connection for bilateral hearing loss and tinnitus In addition to direct service connection, service connection may also be established for chronic conditions. Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Hearing loss and tinnitus (organic diseases of the nervous system) are chronic conditions listed under 38 C.F.R. 3.309(a). Service connection for impaired hearing shall be established when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or more; or when the auditory threshold for at least three of these frequencies 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. In evaluating service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran contends that he is entitled to service connection for bilateral hearing loss and tinnitus. During service, the Veteran did not report having an ear problem or hearing loss. His October 1968 service entrance audiometric examination shows his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 n/a 10 LEFT 0 0 5 n/a 10 The Veteran’s service separation audiometric examination shows his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 15 n/a 20 LEFT 5 0 10 n/a 10 VA medical records from August 2004 and January 2005 note the Veteran’s hearing was grossly intact. Treatment notes from 2014 and 2015 show the Veteran was prescribed bilateral hearing aids. The Veteran was afforded a VA audiological examination in April 2015. At the examination, the Veteran denied a history of ear infection or ear surgery. He reported a history of head injuries from motor vehicle accidents that occurred during his teenage years and during service. He stated that during service he was a military policeman, and he escorted weapons on helicopters without wearing ear protection. The Veteran reported having trouble understanding what others are saying if they are not looking directly at him, and he must listen to the television at a loud volume. The Veteran also reported having bilateral tinnitus. He could not recall the onset date of his tinnitus, and described it as sometimes hearing a high-pitched bird singing. He stated that tinnitus interrupts his ability to hear and to think. The Veteran’s audiometric examination shows his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 55 65 65 LEFT 20 15 50 65 65 Using the Maryland CNC speech discrimination test, the Veteran demonstrated speech recognition ability of 94 percent in each year. The VA examiner determined the Veteran has bilateral sensorineural hearing loss and recurrent tinnitus. He opined that the Veteran’s bilateral hearing loss and tinnitus is less likely as not due to his military service. In support of his opinion, the VA examiner explained that the Veteran’s hearing during service was normal, there was no significant shift in hearing thresholds during service, no evidence of verifiable noise injury, and no indication of hearing loss within one year of service separation. Additionally, the VA examiner stated that it is difficult to attribute the Veteran’s current hearing impairment solely to the Veteran’s claims of noise exposure during service without also considering factors that affect hearing loss such as aging, health issues, and noise exposure from occupational activities 44 years after his military service. The Board concludes that the preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss and tinnitus are etiologically related to his military service. A review of the claims file shows the Veteran’s hearing was normal during service. The earliest report of hearing loss occurred more than 40 years after service discharge, when the Veteran was provided with bilateral hearing aids. Though the Veteran is competent to report that tinnitus began during service, he has not done so. See 38 C.F.R. § 3.159 (a)(2); Jandreau, 492 F.3d at 1372 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App 370, 374 (2002). The Veteran has not alleged that he has had tinnitus since service. At the April 2015 VA examination, the Veteran could not recall the onset date of tinnitus. The VA examiner opined that the Veteran’s hearing loss and tinnitus were not caused by military service, including in-service noise exposure. The claims file does not contain any objective evidence or a medical opinion that would support the Veteran’s claim of entitlement to service connection for hearing loss or tinnitus. The Board finds that the Veteran’s military service did not cause bilateral hearing loss or tinnitus, and neither condition manifested to a compensable degree within one year of service separation. Therefore, service connection is not warranted, and the claims are denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to service connection for a cervical spine condition, to include as secondary to a service-connected right shoulder disability The Veteran contends he is entitled to service connection for a cervical spine condition, as secondary to his service-connected right shoulder disability. Arthritis is also chronic condition listed under 38 C.F.R. 3.309(a). Additionally, service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Board concludes that, while the Veteran has a current disability of degenerative arthritis of the cervical spine, the preponderance of the evidence is against finding that the Veteran’s cervical spine condition is etiologically related to his military service, manifested within one year of service discharge, or is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Upon service entrance in October 1968, the Veteran did not report having a neck or cervical spine condition. Service treatment records from May 1970 note the Veteran was in a motor vehicle accident, which resulted in a low back strain. In June 1970, the Veteran complained of a headache and pain on the right side of his neck. At the Veteran’s service separation medical examination in July 1971, he did not report having a problem with his cervical spine. VA treatment notes from July 2007 include a radiological image of the Veteran’s cervical spine, which revealed degenerative disc disease. In July 2008, the Veteran received epidural steroid injections due to cervical radiculopathy. November 2008 and November 2009 images of the cervical spine showed cervical radiculitis, degenerative disc disease, stenosis, and facet arthropathy. Cervical spine image reports from June 2010, November 2012, and May 2013 note the Veteran’s degenerative disc disease was moderate and stable, and there were no fractures or dislocation. At a January 2014 VA examination, the Veteran reported having progressively worsening neck pain that began in 2004. He described a history of neck injections and pain medications. The Veteran stated his neck pain exists on the right side and causes reduced range of motion. The VA examiner diagnosed degenerative arthritis and spinal stenosis. He opined that the Veteran’s deterioration of the cervical spine on the right side was less likely than not incurred in or caused by military service. As rationale, the VA examiner stated that while the Veteran’s surgery for his service-connected right shoulder disability led to residuals, including reduced range of motion, there is no direct correlation between the shoulder disability and the cervical spine. The examiner concluded it was more likely than not that the Veteran’s cervical spine arthritis is the result of his age, obesity, and work history, but also stated that his shoulder condition aggravated the cervical spine by worsening the symptoms on the right side. However, the VA examiner did not provide any rationale regarding his conclusion that the right shoulder disability aggravated the Veteran’s cervical spine condition. The RO requested an addendum VA opinion to clarify whether the Veteran’s cervical spine condition is caused or aggravated by the service-connected right shoulder disability. In October 2017, a VA examiner reviewed the claims file and submitted an opinion. The VA examiner opined that it is less than 50 percent likely that the right shoulder has led to an aggravation or causation of the cervical spine pathology. In support of his opinion, the VA examiner explained that the Veteran has no aggravation or secondary cause of cervical spine symptoms or pathology due to his shoulder related pathology, including the result of post-operative residuals of right shoulder acromioclavicular surgery. The anatomic structures of the cervical spine are anatomically distinct from the acromial clavicular joint. Postoperative residuals of the shoulder do not clinically affect the cervical spine in any way as these are anatomically distinct regions. The VA examiner stated that in this case, there is no anatomical or clinical basis to attach aggravation or causation of the spine disease to the pre-existing shoulder pathology. The Board finds the preponderance of the evidence is against the claim. Following a motor vehicle accident during service, the Veteran complained of neck pain on one occasion. Other notations of back pain within service treatment records were in reference to the Veteran’s lower back. At service separation, the Veteran did not report having a neck or cervical spine condition. The evidence does not show the Veteran’s cervical spine arthritis manifested within one year of service discharge. Following service separation, the earliest mention of a cervical spine condition occurred in July 2007, more than 35 years after service, when an image of the cervical spine showed evidence of degenerative changes. Opinions from VA examiners indicate the Veteran’s current diagnosis of degenerative changes of the cervical spine is not related to military service, nor is it the result of or aggravated by the Veteran’s service-connected right shoulder disability. Both VA examiners found there is no direct correlation between the right shoulder and the cervical spine. The Board notes that the January 2014 VA examiner stated that the Veteran’s right shoulder disability worsened the cervical spine symptoms on the right side, but the examiner did not provide any additional explanation for this statement. More probative weight is assigned to the October 2017 VA examiner’s opinion and rationale that the Veteran’s cervical spine condition was not aggravated by his right shoulder disability. Though the Veteran believes his cervical spine condition is the result of his service-connected shoulder disability, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the opinions of the VA examiners. The claim of entitlement to service connection for a cervical spine condition, to include as secondary to service-connected right shoulder disability, is denied. 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 claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert at 53-56. 4. Entitlement to service connection for COPD and heart disease, to include as secondary to service-connected PTSD The Veteran contends that his COPD and heart disease are the result of his service-connected PTSD. VA treatment notes show the Veteran has diagnoses of COPD and ischemic heart disease. A private medical opinion from Dr. H.S. was provided in January 2019. Dr. H.S. confirmed that a complete review of the Veteran’s claims filed was conducted. He opined that the Veteran’s cardiac complications are more likely than not caused by and permanently aggravated by symptoms associated with his service-connected PTSD. Dr. H.S. specifically acknowledged cardiology treatment notations from physicians who found it unclear why the Veteran experienced cardiovascular problems despite being a non-smoker and having undergone significant weight loss. Dr. H.S. stated that in addition to other physical ailments, the Veteran has experienced significant psychological complications for many years that contribute to him feeling overwhelmed and having dysphoric moods. In support of his opinion, Dr. H.S. cited research from the American Journal of Psychiatry and the Archives of Family Medicine that discuss a direct link between psychological impairments and cardiovascular diseases. Consequently, the preponderance of the evidence is in favor of granting service connection for COPD and heart disease on a secondary basis. 5. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD and right shoulder disability The Veteran contends that his obstructive sleep apnea is the result of his service-connected PTSD. VA treatment notes from September 2009 indicate the Veteran complained of snoring, pauses in breathing during sleep, and sudden awakening with anxiety or fear. He underwent a sleep study where a diagnosis of sleep apnea was confirmed. He was started on continuous positive airway pressure (CPAP) and bilevel positive airway pressure (BiPAP) machines to help with sleep events and snoring. In January 2019, Dr. H.S. provided a private disability benefits questionnaire (DBQ) and medical opinion regarding the Veteran’s sleep apnea. The Veteran described having a history of loud snoring, apneas, daytime fatigue, and diminished concentration. Despite using CPAP and BiPAP machines, the Veteran reported he continues to have persistent sleep apnea symptoms. Dr. H.S. opined that the Veteran’s sleep apnea is at least as likely as not caused by and permanently aggravated by complications surrounding his service-connected PTSD, and side effects of pain medications used for chronic pain associated with his service-connected right shoulder disability. In support of his opinion, Dr. H.S. referenced the Veteran’s treatment records that note sleep impairment as a symptom of the Veteran’s PTSD. Dr. H.S. also cited research published in the SLEEP journal regarding a large study of millions of veteran patients that found that individuals with depression are five times as likely to develop and experience permanent exacerbation of obstructive sleep apnea when compared to non-depressed patients. Additionally, Dr. H.S. discussed a research study published in Medscape that discusses the connection between chronic pain and disrupted sleep. Consequently, the preponderance of the evidence is in favor of granting service connection for obstructive sleep apnea on a secondary basis. 6. Entitlement to service connection for diabetes mellitus and bilateral foot neuropathy, to include as due to exposure to herbicides The Veteran contends he is entitled to service connection for diabetes mellitus and bilateral foot neuropathy, as due to exposure to herbicides during service. The Board concludes that, while the Veteran has current diagnoses of diabetes mellitus and bilateral foot neuropathy, the preponderance of the evidence is against finding that these conditions are etiologically related to the Veteran’s military service, including as due to exposure to herbicides. Pursuant to 38 C.F.R. § 3.309(e), if a Veteran was exposed to an herbicide agent (including Agent Orange) during active service, certain enumerated diseases, including diabetes and neuropathy, shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. Where the evidence does not warrant presumptive service connection, a Veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). A claimant is permitted to demonstrate in-service incurrence or aggravation through actual evidence of Agent Orange exposure, and a claimant may establish a nexus to service by actual evidence of a link between a present disability and the in-service event. See Combee, 34 F.3d at 1043-44; 38 C.F.R. § 3.303(d). For a claimant seeking service connection as a result of herbicide exposure in Korea, VA has provided that the in-service-incurrence-or-aggravation prong is satisfied by a presumption that veterans serving in a qualifying unit between April 1, 1968, and August 31, 1971, were indeed exposed during such service to a qualifying herbicide agent. 38 C.F.R. § 3.307 (a)(6)(iv). Pursuant to § 3.307 (a)(6)(iv), the Department of Defense (DoD) has promulgated a list identifying specific qualifying units. See VA Adjudication Procedures Manual (M21-1MR), pt. IV, subpt. ii, ch. 2, sec. C.10. The DoD has confirmed that Agent Orange was used along the southern boundary of the Demilitarized Zone (DMZ) in Korea from April 1968 through July 1969. DoD also has identified specific military units that were assigned or rotated to areas along the DMZ where Agent Orange was used. For Veterans who served in Korea from April 1968 through July 1969 in the specific units identified by DoD, exposure to Agent Orange is conceded. In order to consider whether a veteran was exposed to an herbicide agent while stationed in the Korean DMZ, a veteran would have had to serve between September 1, 1967 and August 31, 1971 in a specific location. See 38 C.F.R. 3.814. The Veteran’s service dates are October 1968 to October 1971. The Veteran reported that he served in Sok Su Dong, Korea as a guard of an ammunition storage facility in March 1970. He described that there was virtually no vegetation growing, which he believes was due to herbicides. The RO requested additional records and information regarding the Veteran’s service in Korea. In an August 2015 formal finding memorandum, it was determined that the Veteran served in South Korea, which is not considered along the border of the Korean DMZ, and there was insufficient information to concede herbicide exposure. The Veteran also contends he was exposed to herbicides while stationed in Fort Gordon, Georgia in January 1969. The RO requested additional information from the Department of Defense regarding whether the Veteran may have been exposed to herbicides in Fort Gordon, Georgia. A response was received in August 2017. Though Agent Orange testing occurred at a remote forested location at Fort Gordon, the tests were conducted between July and October of 1967. Further, the tests were not near any military base personnel and was conducted by civilians. Given that the Veteran was not present at Fort Gordon until January 1969, there was no evidence to support his claim of herbicide exposure. As the evidence does not support the Veteran’s claim that he was exposed to herbicides during service, presumptive service connection for diabetes mellitus and bilateral neuropathy is not warranted. The Board also finds service connection is not warranted for these conditions on a direct basis. Service treatment records are silent regarding complaints of, treatment for, or diagnoses of diabetes or neuropathy. VA medical records indicate the Veteran was diagnosed with diabetes in August 2002, more than 30 years after service discharge. In November 2013, the Veteran was noted to have numbness and tingling in his feet due to neuropathy associated with his diabetes. The record does not support, nor does the Veteran contend, a finding that his diabetes and neuropathy are etiologically related to his military service to warrant direct service connection. Therefore, the claims of entitlement to service connection for diabetes mellitus and bilateral foot neuropathy are denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert at 53-56. Increased Rating Criteria Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran’s current symptomatology. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). A 50 percent evaluation for PTSD requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation, neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. A 100 percent evaluation requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). 7. Entitlement to an initial disability evaluation in excess of 50 percent from June 11, 2014 The Veteran is in receipt of a 50 percent rating for PTSD effective June 11, 2014, and a 70 percent rating for PTSD from December 11, 2017. The Veteran contends he is entitled to an earlier effective date for his 70 percent rating, and that he is entitled to an evaluation in excess of 70 percent. VA treatment notes show that from January through March of 2014 the Veteran attended group therapy depression classes. In April and October of 2017, the Veteran reported prior attempts of suicide. The Veteran was afforded a VA examination in May 2015. The Veteran reported that he prefers to work alone to avoid arguments, and that he was previously in counseling but planned to return due to a recent setback. His symptoms included the following: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, circumstantial speech, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including in a worklike setting. The VA examiner observed that the Veteran was cooperative, depressed, anxious, and irritable. There was no evidence of suicidal or homicidal ideation. The VA examiner diagnosed the Veteran with PTSD, and determined his symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks In December 2017, the Veteran attended another VA examination. The VA examiner determined that along with the symptoms noted in the May 2015 VA examination, the Veteran’s PTSD also manifested as impaired impulse control, such as unprovoked irritability with periods of violence, and disorientation to time or place. The VA examiner noted that the Veteran was appropriately groomed, his mood was anxious, and he denied suicidal and homicidal ideation. He determined the Veteran’s symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The examiner recommended that the Veteran seek follow-up psychotherapy treatment and medication management. The Veteran submitted a DBQ from Dr. H.G., a private psychologist, in January 2019. The Veteran reported that he had ongoing difficulty with symptoms, and that he no longer enjoys activities. Upon a mental status examination, the Veteran’s attention and concentration were normal, but he complained of increased trouble with his memory. The Veteran was anxious, nervous, cautious, and unsure of himself during the examination. Dr. H.G. noted the Veteran continued to have the same PTSD symptoms as reported in his prior VA examinations, which caused occupational and social impairment with deficiencies in most areas. In support of his claims, the Veteran also submitted lay statements from his spouse and his friend. The Veteran’s spouse provided a statement in August 2017. She explained that the Veteran was happy following service discharge, and he had plans to continue his career in law enforcement. However, due to his right shoulder injury, he was unable to pass the physical training portion of the law enforcement entrance examination. She states the Veteran’s demeanor changed, and he became more nervous and less likely to socialize. The Veteran’s spouse reported that he is critical, irritable, and often punches or throws items when he is frustrated. Additionally, she stated that on bad days the Veteran walks around the yard with a weapon, and she must watch him to ensure he does not harm himself. In an October 2018 letter, Mr. F.T. stated that he has been friends with the Veteran for the past 35 years. He has witnessed the Veteran struggle with mental health symptoms. Mr. F.T. stated that the Veteran has anxiety, stresses over small issues, does not like to be in crowds, and is hypervigilant. He also stated that the Veteran has memory problems, and ten years ago made comments regarding suicide. The Board finds that throughout the period on appeal, the Veteran’s symptoms more closely approximate a 70 percent rating. 38 C.F.R. § 4.7. The Veteran has reported past suicide attempts, and lay statements from his spouse and friend also note that the Veteran has demonstrated suicidal ideation. His PTSD has caused isolation, anxiety, depression, sleep impairment, and angry outbursts, during which he throws and breaks items. The private medical opinion from January 2019 notes the Veteran is currently on medication to help control his temper. The Veteran is not entitled to a 100 percent rating, as neither the VA examiners nor the private physician determined his PTSD symptoms resulted in total occupation and social impairment. Additionally, the Veteran was observed to be appropriately groomed, and he consistently denied hallucinations. Accordingly, the Veteran is entitled to a 70 percent rating, and no higher, for PTSD effective June 11, 2014. REASONS FOR REMAND 1. Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. As the Board has granted service connection for COPD, heart disease, and sleep apnea, and has granted an increased rating for PTSD effective June 11, 2014, the TDIU issue must be deferred on remand for re-adjudication after the additional ratings have been established. Further, the RO must request the Veteran to clarify when he stopped working. In his March 2015 TDIU application, the Veteran stated he last worked in 2014. However, treatment notes from October 2017 show the Veteran reported he stopped working 6 weeks prior, but in November 2017 he reported that he continued to work. The matter is REMANDED for the following action: 1. Request the Veteran provide additional information regarding when he last worked. 2. After ratings for all of the Veteran’s service-connected disabilities have been assigned, readjudicate the claim of entitlement for TDIU. If any benefit on appeal remains denied, issue a supplemental statement of the case. Then, if indicated, this case should be returned to the Board for appellate disposition. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel