Citation Nr: 21007603 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-10 581 DATE: February 10, 2021 ORDER A rating in excess of 10 percent for a lumbar spine strain is denied. A rating of 70 percent, from April 16, 2015 to November 19, 2019, for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), insomnia, moderate to severe alcohol use disorder, and unspecified depressive disorder, is granted. A rating in excess of 70 percent effective November 20, 2019 for an acquired psychiatric disorder, to include PTSD, insomnia, moderate to severe alcohol use disorder, and unspecified depressive disorder, is denied. Service connection for hypertension is denied. Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran's lumbar spine did not show forward flexion functionally limited to 60 degrees or less or combined range of lumbar motion functionally limited to 120 degrees or less; and the Veteran's lumbar spine has not been shown to be productive of either muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The record did not show prescribed bed rest to treat the Veteran's back disability or spinal ankylosis. 2. For the period from April 16, 2015 to November 19, 2019, the Veteran's acquired psychiatric disorder, to include PTSD, insomnia, moderate to severe alcohol use disorder, and unspecified depressive disorder, was manifested by occupational and social impairment with deficiencies in most areas. 3. For the period from November 20, 2019 to the present, the Veteran's acquired psychiatric disorder, to include PTSD, insomnia, moderate to severe alcohol use disorder, and unspecified depressive disorder, did not manifest as total occupational and social impairment. 4. Symptoms of hypertension did not start in service, were not continuous since service, or manifest to a compensable degree within one year of service separation. 5. There is no current diagnosis of a bilateral hearing disability as defined by law. CONCLUSIONS OF LAW 1. Throughout the entire period on appeal, the criteria for a rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. For the period from April 16, 2015 to November 19, 2019, the criteria for a rating of 70 percent for an acquired psychiatric disorder, to include PTSD, insomnia, moderate to severe alcohol use disorder, and unspecified depressive disorder, have been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.125, 4.126, 4.130, DC 9411. 3. For the period from November 20, 2019 to the present, the criteria for a rating in excess of 70 percent for an acquired psychiatric disorder, to include PTSD, insomnia, moderate to severe alcohol use disorder, and unspecified depressive disorder, have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.125, 4.126, 4.130, DC 9411. 4. The criteria to establish service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 5. The criteria to establish service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 2001 to June 2008. This matter was previously before the Board of Veterans’ Appeals (Board) in June 2019 when the issues were remanded for further development. Further development having been completed; the matter is once again before the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. An increased rating in excess of 10 percent for a lumbar spine strain is denied. The Veteran contends that his low back condition is worse than that which is contemplated by his current 10 percent rating under DC 5237. For the reasons discussed below, the preponderance of the evidence is against the assignment of a rating higher than 10 percent for the Veteran’s service-connected lumbar spine strain and the appeal will be denied. Under the current criteria, back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, DC 5237. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § § 4.71, Plate V. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. §§ 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § § 4.71a, DC 5243, Note (1). The Veteran was afforded a VA examination in July 2015. The examiner noted a diagnosis of lumbar spine strain. Flare-ups were denied. Initial range of motion (ROM) testing was performed. The examiner noted the following: forward flexion to 90 degrees or greater with no objective evidence of painful motion, extension to 30 degrees or greater with no objective evidence of painful motion, bilateral flexion to 30 degrees or greater with no objective evidence of painful motion, and bilateral rotation to 30 degrees or greater with no objective evidence of painful motion. Repetitive-use testing was performed. However, no additional limitation of ROM was observed. The examiner noted that the Veteran did not have any function loss and/or impairment of the thoracolumbar spine. No localized tenderness or pain to palpation was indicated. No guarding or muscle spasm was indicated. Muscle strength was noted as normal, five out of five, on all movements. Muscle atrophy was denied. A reflex examination revealed normal results on all areas tested. Sensation to light touch was noted as normal. The straight leg raising test was negative. No signs of radicular pain or symptoms due to radiculopathy were noted. Ankylosis was denied. No neurologic abnormalities were noted. IVDS was denied. The use of assistive devices was denied. No other pertinent findings were indicated. The examiner noted that the Veteran’s condition does not impact his ability to work. In a September 2018 Board hearing, the Veteran stated that his low back condition had worsened since the July 2015 RO rating decision, which continued his 10 percent evaluation. The Veteran also stated that he sometimes uses a back brace to alleviate pain. Pursuant to the June 2019 Board remand, the Veteran was afforded a VA examination in November 2019. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. The examiner noted a diagnosis of lumbar spine strain. The Veteran reported current symptoms of tightness and pain, which he rated as seven out of ten. He also reported fatigue, which he reported “takes him out” when he exercises. The Veteran reported that he treats his symptoms with ice, a back brace, and Advil. The Veteran reported flare-ups once per week with a duration of up to two days. Flare-up severity was reported as seven to eight out of ten. Functional loss or impairment was described as limited bending, limited heavy lifting of no more than 40 pounds, and inability to exercise like he used to. The Veteran also reported that he is unable to participate in martial arts training and that he is unable to lift his children. Initial ROM testing was performed. The examiner noted the following: forward flexion to 75 degrees, extension to 25 degrees, bilateral flexion to 25 degrees, and bilateral rotation to 25 degrees. ROM was noted not to cause functional loss. However, pain on all ROM movements was noted to cause functional loss. No evidence of pain with weight bearing was indicated. The examiner noted that the Veteran’s lower lumbar area is mildly tender, which was related to his lumbar spine strain. Observed repetitive use testing was performed. The examiner noted additional loss of function or ROM after three repetitions. The examiner recorded the following: forward flexion to 70 degrees, extension to 20 degrees, bilateral flexion to 20 degrees, and bilateral rotation to 20 degrees. Pain and fatigue were noted as factors that cause the described functional loss. Repeated use over time testing was not performed. However, pain and fatigue were noted to significantly limit functional ability with repeated use over a period of time. The examiner described the limitation as the following: forward flexion to 65 degrees, extension to 20 degrees, bilateral flexion to 20 degrees, and bilateral rotation to 20 degrees. The examination was not conducted during a flare-up. The examiner noted that pain, weakness, fatigability or incoordination does not significantly limit functional ability with flare-ups. Guarding and muscle spasm were denied. No other additional factors contributing to the Veteran’s condition were noted. Muscle strength testing revealed normal results, five out of five, on all movements. Muscle atrophy was denied. A reflex examination revealed normal results on all areas tested. The straight leg raising test was negative. No signs of radicular pain or symptoms due to radiculopathy were noted. Ankylosis was denied. No neurologic abnormalities were noted. IVDS was denied. The occasional use of a back brace was endorsed. No other pertinent findings were indicated. In terms of impact on the Veteran’s ability to work, the examiner noted that the Veteran has missed up to one week of work time in the last 12 months. The examiner also noted that the Veteran is limited in his ability to bend, has limited ability to lift heavy objects over 40 pounds, and has an inability to exercise like he used to. The examiner also noted that the Veteran reported that he is unable to participate in martial arts training and that he is unable to lift his kids. Pursuant to 38 C.F.R. §§ 4.71a DC 5237, a rating higher than 10 percent for a lumbar spine disability can only be assigned if, at a minimum, the Veteran exhibits forward lumbar flexion functionally limited to 60 degrees or less; a combined range of motion of the lumbar spine functionally limited to 120 degrees or less; or abnormal gate or abnormal spinal contour resulting from severe muscle spasm or guarding. Throughout the period on appeal, at worst, the Veteran has exhibited flexion of his lumbar spine limited to 65 degrees. Further, his combined range of motion of his lumbar spine was not shown to be functionally limited to 120 degrees or less. In addition, the Veteran was not found to have guarding or muscle spasm severe enough to result in an abnormal gait or abnormal spine contour. Therefore, throughout the period on appeal, the Veteran is not entitled to a schedular rating in excess of 10 percent, for his lumbar spine disability under DC 5237. A higher rating under DC 5243 is also not warranted since the evidence does not show that the Veteran has IVDS. In evaluating disabilities of the musculoskeletal system, it is also necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. §§ 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. §§ 4.45. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. Although the Veteran reported experiencing flare-ups during the period on appeal, it has not been shown that the Veteran's thoracolumbar spine flexion, even accounting for pain, weakness, fatigability, or incoordination, showed forward flexion functionally limited to greater than 30 degrees, but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding. While the Veteran experiences pain on range of motion, the pain was not shown to effectively limit the forward flexion in his back to 60 degrees or less. Throughout the entire period on appeal, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent. While the Veteran may, at times, experience pain on range of motion, pain has not been shown to have effectively limited forward flexion to 60 degrees or less, or to so functionally limit the range of motion in his back that the combined range of such limited motion was 120 degrees or less. Accordingly, throughout the entire appeal period, a disability rating in excess of 10 percent, for a lumbar spine disability is not warranted and, the claim is denied. 2. An increased rating of 70 percent, from April 16, 2015 to November 19, 2019, for an acquired psychiatric disorder, to include PTSD, insomnia, moderate to severe alcohol use disorder, and unspecified depressive disorder, is granted. 3. An increased rating in excess of 70 percent from November 20, 2019 to the present, for an acquired psychiatric disorder, to include PTSD, insomnia, moderate to severe alcohol use disorder, and unspecified depressive disorder, is denied. Prior to April 16, 2015, the Veteran’s sleep disorder, not otherwise specified, claimed as anxiety, was rated as noncompensable under DC 9413. In April 2015, the Veteran submitted a non-initial increased rating claim for his service-connected sleep disorder, not otherwise specified, claimed as anxiety, and a service connection claim for PTSD. In July 2020, the Regional Office (RO) combined the Veteran’s claim for an increased rating for service-connected sleep disorder, not otherwise specified, claimed as anxiety, and service connection claim for PTSD, and granted the claim under DC 9411. The Veteran was assigned a 30 percent disability rating, from April 16, 2015 to November 19, 2019, and assigned a 70 percent disability rating, from November 20, 2019. For the reasons discussed below, the Veteran’s psychiatric disorder, to include PTSD, insomnia, moderate to severe alcohol use disorder, and unspecified depressive disorder, warrants a 70 percent rating, but no higher, for period from April 16, 2015 to November 19, 2019. However, for the period from November 20, 2019 to the present, a rating in excess of 70 percent is not warranted. Anxiety disorder not otherwise specified is rated under 38 C.F.R. § 4.130, DC 9413. PTSD is rated under DC 9411. Symptoms attributable to either of these diagnosed conditions are relevant to the rating for the Veteran's service-connected psychiatric disorders. The precise diagnostic code chosen will not affect the Veteran's disability rating because all psychiatric disorders are evaluated under a general rating formula for mental disorders. 38 C.F.R. § 4.130. As noted above, VA regulations require the Board to avoid "pyramiding" or the evaluation of the same disability, or the same manifestation of a disability, more than once under different diagnostic codes. See 38 C.F.R. § 4.14. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A 30 percent evaluation is warranted when a mental disability results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent evaluation is warranted if the evidence establishes 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 or social relationships. Id. A 70 percent rating is warranted for 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. Id. A 100 percent rating is warranted for total occupational and social impairment with symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, own name. Id. The criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, the Veteran must demonstrate the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In a July 2015 VA PTSD examination, the Veteran was noted as experiencing persistent and exaggerated negative beliefs or expectations about himself, others, or the world; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; persistent inability to experience positive emotions; and irritable behavior and angry outbursts. It was noted that the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner opined that the Veteran developed some PTSD symptoms during his deployments to Iraq and indicated that these symptoms have persisted continuously since then. In a September 2018 Board hearing, the Veteran stated that he has experienced suicidal ideation since his service, and periods of depression. Pursuant to the June 2019 Board remand, the Veteran was provided a VA examination in November 2019. The examiner was asked to provide an opinion as to whether the Veteran has PTSD and if so, whether it onset during active duty service or is otherwise causally or etiologically related to it. Additionally, the examiner was asked that if the Veteran has PTSD that was caused or worsened by military service, may it be distinguished from the already service-connected anxiety disorder and what are the respective manifestations as to occupational and social impairments of these disorders in this Veteran. In the November 2019 VA examination, the examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. The examiner noted that the Veteran has current diagnoses of PTSD, insomnia, moderate to severe alcohol use disorder, and unspecified depressive disorder. The Veteran reported recurrent dreams of traumatic events, trouble sleeping daily, aggression, monthly passive suicidal thoughts, depressive episodes involving yelling, and history of psychotic break. The examiner noted that the Veteran’s multiple mental disorders and resulting symptoms overlap, and that it is not possible to differentiate what symptoms are attributable to each diagnosis. The examiner stated that she is unable to determine their individual impact. The examiner noted that the Veteran experiences occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, and thinking and/or mood. In terms of occupational and social impairment, the examiner stated that it is not possible to differentiate which impairment is caused by each mental disorder. The Veteran reported living with his wife of 15 years and their two children. He stated that he and his spouse are getting along better since he stopped drinking. He stated that he has friends and gets along with his co-workers, but that he has not socialized with them since 2017. He also stated that he is in contact with his parents and siblings, but that they call him, he does not call them. The Veteran reported that since 2015, he has lost jobs due to being “burned out” and/or being fired. For one three-month period, the Veteran reported that he was out of work due to stress. However, he stated that in September 2019 he was hired by an aviation manufacturing company as an aerial vehicle operator. He also reported that since 2015, he earned a bachelor’s degree in business administration and finance, a degree that he received in December 2016. The Veteran reported that he was thinking of killing himself with a shotgun in June 2018 while his family was away from him out of state. He stated that he decided not to do it because of his children. Since then, the Veteran reported passive thoughts of suicide but no plan. He also reported that in February 2019 he was hospitalized due to a break from reality when he became delusional and manic. He stated that the police were involved in the incident. The Veteran reported that from 2015 to 2018, he drank a bottle of whiskey daily. However, he stated that he has not had a drink since November 2019. The examiner noted the following symptoms of the Veteran’s mental disorders: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; impaired judgement; impaired abstract thinking; disturbances of mood and motivation; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; suicidal ideation; and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner observed the following: the Veteran was overweight, unshaven, and dressed in casual attire; his legs bounced up and down during most of the examination; he was friendly and would joke to deflect sad events; he was alert and fully oriented; his mood was anxious and slightly depressed; his affect was somewhat restricted in range; and his speech was of normal rate and logical, but tangential at times. No delusions were noted. The Veteran denied any hallucinations. His insight was observed as fair. His judgment was noted as intact. The Veteran denied active or current suicidal or homicidal ideation, intent, or plan. No other symptoms were noted, and the examiner noted that the Veteran is capable of managing his financial affairs. For the period from April 16, 2015 to November 19, 2019, the Veteran's symptoms warrant a 70 percent disability rating. Specifically, a 70 percent rating for the period is warranted due to the following symptoms: persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; persistent inability to experience positive emotions; irritable behavior and angry outbursts; significant distress or impairment in social, occupational, or other important areas of functioning; depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; impaired judgement; impaired abstract thinking; disturbances of mood and motivation; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; suicidal ideation; and impaired impulse control, such as unprovoked irritability with periods of violence. Based on the evidence, for the period from April 16, 2015 to November 19, 2019, the Veteran's acquired psychiatric disorder, to include PTSD, insomnia, moderate to severe alcohol use disorder, and unspecified depressive disorder manifested by occupational and social impairment with deficiencies in most areas. A 70 percent rating is warranted, for the period from April 16, 2015 to November 19, 2019. A higher rating of 100 percent is not warranted at any time during the period on appeal because generally, the evidence of record reflects that the Veteran has been living with his spouse and two children for the past 15 years, he has been able to work despite periods when he did not work, he has been able to complete a bachelor’s degree, he has friends and gets along with his co-workers, and he has relationships with his parents and siblings. Thus, evidence does not meet the level of severity, frequency or duration which would warrant a higher evaluation at any time during the period on appeal. Moreover, while the evidence indicates memory loss, there is no indication it was so severe as to be analogous to forgetting his own name or his occupation. Therefore, a higher, 100 percent rating, for the Veteran's acquired psychiatric disorder, to include PTSD, insomnia, moderate to severe alcohol use disorder, and unspecified depressive disorder, is not warranted at any time during the period on appeal. 38 C.F.R. § 4.130, DC 9411. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § § 1110. Service connection may be granted for any disease 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection may also be established under 38 C.F.R. §§ 3.303(b) if a chronic disease is shown in service, and subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § § 1101; 38 C.F.R. § §§ 3.307, 3.309(a). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed using his senses, not medical expertise. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 307 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The Board is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § § 5107(b); 38 C.F.R. §§ 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107(b). 4. Service connection for hypertension is denied. The Veteran contends that his current diagnosis of hypertension is related to his service. For VA purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, DC 7101, Note (1). A diagnosis of hypertension requires two or more readings on at least three different days. Id. Multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). A September 2001 enlistment examination noted a blood pressure reading of 129/78. A January 2005 aeromedical examination noted a blood pressure reading of 136/88. A March 2006 service treatment record (STR) noted a blood pressure reading of 134/77. A February 2007 report of medical examination noted a blood pressure reading of 130/88. A February 2008 three-day blood pressure screening noted a standing blood pressure reading on day three of 160/96. In the March 2008 separation examination, the Veteran reported having high blood pressure. His blood pressure reading at that time was 144/94. Pursuant to the June 2019 Board remand, the Veteran was afforded a VA examination in November 2019. The examiner was asked to provide an opinion as to whether the Veteran has hypertension and if so, whether it onset during active duty service or if in retrospect, the disorder was present within 18 months after the Veteran was discharged from active duty. The examiner was also specifically asked to address reports of high blood pressure contained in the Veteran's STRs prior to separation, and whether these reports represent the onset of his current hypertension. In the November 2019 VA examination, the examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. The examiner noted that the Veteran reported having high blood pressure readings in 2008 and that he was officially diagnosed in 2014. The Veteran reported beginning treatment with Metoprolol in 2014. He reported that when he changed his diet and lost weight, his condition improved. He stated that when his condition improved, he was able to stop treatment with Metoprolol and that he now treats his condition solely through diet. The examiner noted that the Veteran does not have a history of diastolic blood pressure evaluation to predominantly 100 or more. No other pertinent findings were indicated. The examiner noted that the Veteran’s hypertension does not impact his ability to work. The examiner opined that the Veteran’s condition was less likely than not incurred in or caused by his service. The examiner stated that although there is noted episodic elevations of blood pressure in the STRs, it does not equate to a diagnosis of hypertension. The examiner noted that the Veteran was diagnosed with hypertension as early as 2014, and that the Veteran has a current diagnosis of hypertension. The examiner noted that the evidence outlined above was reviewed, but explained that the readings are all normal, but for the February and March 2008 readings, which the examiner characterized as episodic high readings without a diagnosis of hypertension. The Veteran is not competent to opine that his current hypertension is due to an event, injury, or disease during service. He has not been shown to have the medical expertise to provide such an opinion. Further, there is no competent evidence of record showing a possible link between the Veteran's current hypertension and his service. In the November 2019 VA examination, the examiner opined that the Veteran’s condition was less likely than not incurred in or caused by his service. The examiner stated that although there is noted episodic elevations of blood pressure in the STRs, it does not equate to a diagnosis of hypertension. As a result, the Veteran's service connection claim for hypertension must be denied. There was no in-service injury, event, or disease of which his hypertension is related, and the evidence does not establish that his hypertension had its onset within one year of his discharge from service. The most probative evidence does not show a continuity of symptomatology. Service connection for hypertension is denied. 5. Service connection for bilateral hearing loss is denied. The Veteran contends that he has bilateral hearing loss that is related to his service. Entitlement to service connection for bilateral hearing loss is denied based on a lack of a current disability as that term is defined by applicable law. As noted above, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, an appellant must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (2009); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). The determination of whether the Veteran currently has a hearing loss disability is governed by 38 C.F.R. § 3.385. Under VA law, impaired hearing is considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 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. Pure tone thresholds above 20 decibels indicate some hearing loss, irrespective of whether it is severe enough to qualify as a disability for VA compensation purposes. See Hensley v. Brown, 5 Vet. App. 155 (1993). While the Veteran contends that he should be service-connected for bilateral hearing loss, there is no competent evidence of record that the Veteran has a current diagnosis of bilateral hearing loss as defined by VA regulations. The Veteran served as an unmanned aerial vehicle operator and was exposed to aircraft noise on the flight line. A February 2008 audiological examination concluded that the Veteran had no measurable hearing loss, according to VA standards, but that does not preclude a change in hearing acuity or increasing difficulty understanding speech at times as a result of the acoustic trauma that the Veteran experienced in-service. A June 2015 audiological examination concluded that the Veteran had normal bilateral hearing, according to VA standards, and that per the medical records there was no significant changes in hearing thresholds in service for his bilateral hearing. In a September 2018 Board hearing the Veteran stated that his wife told him that his hearing has worsened since his last examination in June 2015. Pursuant to the June 2019 Board remand, the Veteran was afforded a VA examination in November 2019. The examiner was asked to provide an opinion as to whether the Veteran has bilateral hearing loss and if so, whether it onset during active duty service or is otherwise causally or etiologically related to it. In the November 2019 VA examination, the examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. The examiner opined that the Veteran’s condition was less likely than not incurred in or caused by his service. The examiner explained that the Veteran’s hearing was within normal limits by VA disability standards on evaluation. The examiner also noted that the February 2008 audiological examination also indicated hearing within normal limits. Although the examiner noted a bilateral significant shift between the Veteran’s entrance examination and the February 2008 examination, there is no diagnosis of hearing loss in the evaluation. There are no other medical records establishing that the Veteran has a current hearing loss disability per VA law. See 38 C.F.R. § 3.385. As there is no competent evidence that would establish the current disability element with regard to the hearing loss claim, entitlement to service connection for bilateral hearing loss cannot be granted on any basis. See Brammer v Derwinski, 3 Vet. App. 223, 225 (1992) (holding that there can be no valid claim for service connection "[i]n the absence of proof of a present disability"). The claim for entitlement to service connection for bilateral hearing loss is therefore denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.