Citation Nr: 21041451 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 20-21 465 DATE: July 9, 2021 ORDER Entitlement to a disability rating in excess of 50 percent prior to January 16, 2020 for post-traumatic stress disorder (PTSD) to include persistent depressive disorder with anxious distress and alcohol use disorder is denied. Entitlement to a disability rating in excess of 70 percent from January 16, 2020 for PTSD is denied. Entitlement to service connection for lumbar spine degenerative disc disease with incapacitating episodes is denied. Entitlement to service connection for left lower extremity radiculopathy as secondary to lumbar spine degenerative disc disease with incapacitating episodes is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's symptoms are most closely approximate to occupational and social impairment with reduced reliability and productivity prior to January 16, 2020. Occupational and social impairment, with deficiencies in most areas is not shown. 2. The severity, frequency, and duration of the Veteran's symptoms are most closely approximate to occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood from January 16, 2020. Total occupational and social impairment is not shown. 3. There is no probative evidence of record showing that the Veteran's current lumbar spine degenerative disc disease with incapacitating episodes had its onset during his active service or is otherwise causally or etiologically related to an in-service event, injury, or disease. 4. The Veteran's left lower extremity radiculopathy is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) to include persistent depressive disorder with anxious distress and alcohol use disorder prior to January 16, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) to include persistent depressive disorder with anxious distress and alcohol use disorder from January 16, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 3. The criteria for entitlement to service connection for lumbar spine degenerative disc disease with incapacitating episodes have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for left lower extremity radiculopathy due to service or a service-connected injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1963 to July 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of the August 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board acknowledges that the Veteran has a claim for entitlement to individual disability. On April 2021, the RO sent the Veteran a letter acknowledging the Veteran's request for his appeal to be placed on the hearing docket, as an AMA case. Therefore, the Board does not have jurisdiction over this issue, within this appeal stream. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to a disability rating in excess of 50 percent for post-traumatic stress disorder (PTSD) to include persistent depressive disorder with anxious distress and alcohol use disorder prior to January 16, 2020 2. Entitlement to a disability rating in excess of 70 percent for post-traumatic stress disorder (PTSD) to include persistent depressive disorder with anxious distress and alcohol use disorder from January 16, 2020 The Veteran seeks a higher rating for post-traumatic stress disorder (PTSD) to include persistent depressive disorder with anxious distress and alcohol use disorder. The Veteran is service connected for posttraumatic stress disorder (PTSD) to include persistent depressive disorder with anxious distress and alcohol use disorder under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 with a 50 percent rating effective September 6, 2017. Thus, the applicable rating period is from September 6, 2017, the effective date for the award of service connection for that disability, through the present. See 38 C.F.R. § 3.400. The Board acknowledges that the March 2020 rating decision awarded the Veteran with a 70 percent rating, effective January 16, 2020. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. When determining the appropriate disability rating to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio, 713 F.3d at 118; Mauerhan, 16 Vet. App. at 442. Because the use of the term "such as" in the rating criteria demonstrates that the listed symptoms are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the General Rating Formula for Mental Disorders are also associated with objectively observable symptomatology, and the plain language of the regulation makes it clear that a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency and duration. Vazquez-Claudio, 713 F.3d at 118. Summary of the Evidence relevant to the Increased PTSD Rating Claim The Veteran's treatment records reveal that while the Veteran did not receive treatment for his PTSD, he had PTSD screenings. In September 2008, the Veteran answered "no" to having nightmares; trying hard not to think about "any experience that was too frightening, horrible or upsetting;" being constantly on guard, watchful or easily startled; and feeling numb or detached from others, activities or his surroundings. In March 2013, he answered "no" to everything except for being on constant guard, watchful or easily startled. In August 2018, he answered "yes" to being on guard, and being numb or detached from others. He answered "no" to the other two questions. In May 2018, the Veteran submitted a lay statement explaining the events that led to his PTSD, and the events that led to his divorce. He explained when his former spouse took the children he did not care about his job or his life and fell into a deep depression. The Veteran stated that he had a lot of anger in him and could not control his anger. He met his [current partner] and she helped him tremendously with dealing with his anger. In July 2018, The Veteran was afforded a VA Compensation and Pension (C&P) examination for PTSD. The examiner stated that, [The] Veteran's depression and alcohol abuse disorders, are secondary to the loss of his family. The loss of his family was secondary to the increased irritability, anger and lack of emotional connection to his wife and children after Vietnam. Again, veteran's written statement supports the connection but there are no treatment records to support the connection.... The Veteran reported that he did not seek treatment over the years because he tried to push negative thoughts and feelings out of his mind, and cope[d] with his issues by drinking. The examiner noted that the Veteran was diagnosed with PTSD; persistent depressive disorder, with anxious distress; and alcohol use disorder, moderate. The examiner stated that she was unable to differentiate the symptoms attributable to each diagnosis. The Veteran reported depressive symptoms such as irritability and anger, that he attributes to leading to his divorce and alcohol abuse. The examiner opined that the Veteran's symptoms manifest as occupational and social impairment with reduced reliability and productivity. The Veteran's symptoms include, depressed mood; anxiety; suspiciousness; mild memory loss, such as forgetting names, directions or recent events; impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The Veteran reported that after service he married and had three children, a boy and two twin girls. The twins were born prematurely, and one of them had breathing problems. The Veteran ended up getting a divorce and was allowed to keep the children, but then they were taken from him once his former spouse got settled, which led to alcohol abuse and depression. He sees all three children fairly regularly. However, the Veteran reported being depressed when his children leave. The Veteran reported he is not very social but will occasionally go golfing. The Veteran worked until he was laid off in 2016. The Veteran reported that he has not received any psychotherapy and is not on any psychotropic medications. The Veteran reported that his anger is a bit better, but he is still quite depressed and anxious, but tries to push negative thoughts out of his mind. The examiner noted that the Veteran was neatly groomed, but nervous, with a rather flat affect. He seemed socially uncomfortable, but maintained good eye contact, and could converse appropriately. The examiner stated that the Veteran was fully oriented, and his thought processes were logical and goal oriented. The examiner stated that the Veteran is capable of managing his financial affairs. In January 2020, the Veteran was afforded a VA examination for PTSD. The examiner noted that the Veteran was diagnosed with PTSD; persistent depressive disorder, with anxious distress; and alcohol use disorder, moderate. The examiner stated that he was unable to differentiate the symptoms attributable to each diagnosis. The examiner opined that the Veteran's symptoms manifest as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran's symptoms manifest as, depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner's observations included, Veteran was on time for the evaluation. He appeared anxious, with fidgeting hands, and leg. Affect was depressed. He was oriented X3, there was no evidence of hallucinations/delusions. He appeared casually attired with adequate grooming and hygiene. Speech was very soft spoken; eye contact was appropriate. Intellect was estimated to fall within the average range. The examiner indicated that the Veteran is capable of managing his financial affairs. The examiner stated that the Veteran continues to drink daily until he falls asleep. The examiner explained that the Veteran is "anhedonic, disorganized, socially isolated and generally fearful, uncomfortable leaving his home." The examiner also indicated that the Veteran's condition remains essentially unchanged since his July 2018 examination, and still meets the DSM V criteria for PTSD. The examiner stated that the Veteran should not be considered a current or imminent or increased risk. In June 2020, the January 2020 VA medical examiner provided a medical opinion regarding the Veteran's ability to work. The examiner stated, The veteran's mood dysregulation and alcohol abuse has not affected the veteran's ability to maintain a steady employment history from of his discharge from the military to his retirement in 2016. The veteran stated that his alcohol use at times consisted of a fifth of whiskey per day, and believes it did not affect his work performance. The veteran's depressive symptoms and PTSD condition have not interfered with his work capacity but did negatively affect his family life. The veteran in this examiner's opinion is capable of full-time employment. He likely would do best working by himself or as part of a small group as opposed to working with the general public. In September 2020, the Veteran received a one-time independent medical evaluation. The examiner indicated that he reviewed the Veteran's file "in total." He stated that when asked, the Veteran failed to identify the city he lived in and misspelled it. The examiner stated that the Veteran had his significant other accompany him during the evaluation, and that they have been together for 35 years. The examiner indicated that the Veteran's symptoms were first in evidence 5/30/2018. The Board notes, this is the date the Veteran submitted his lay statement. The examiner stated that, The onset of his intrusive recollection of traumatic events, visual hallucinations, suicidal ideation, tearfulness, depression, sleep disturbance, nightmares, paranoia/hypervigilance, anhedonia, social withdrawal/isolation, emotional lability, anxiety, psychomotor agitation/retardation, hostility/irritability, blunt, flat or inappropriate affect, decreased energy, change in personality, mood disturbance, diminished frustration tolerance, poor judgement and feelings of guilt/worthlessness. The Veteran reported showering every two to three days and changing clothes every two or four days. The Veteran reported that he goes into a rage, and just explodes, he wants to be alone. The Veteran reported visual hallucinations and that he sees people but when he looks for them, they are not there. The examiner indicated that the Veteran's insight and judgement was fair. The examiner stated that the intrusive symptoms included, nightmares; poor judgment at times; passive suicidal ideation; hypervigilance; and visual hallucinations. The examiner stated that the Veteran is experiencing total occupational and social impairment due to such symptoms as "near continuous depression and anxiety, passive suicidal ideation, paranoia, and hypervigilance with visual hallucinations, irritability, hostility, inappropriate affect, tearfulness, anhedonia, isolation, intrusive recollection of traumatic events in which a variety of day to day experiences trigger depression and anxiety." The examiner also stated that the Veteran had "diminished frustration tolerance, psychomotor agitation, and retardation, decreased energy, hypersomia, nightmares, change in personality, mood disturbances, and feelings of guilt and worthlessness." The examiner also filled out a questionnaire regarding the Veteran's symptoms which the examiner opined as manifesting as, deficiencies in family relations, deficiencies in mood, persistent delusions or hallucinations, deficiencies in work or school, panic or depression affecting the ability to function independently, appropriately, and effectively, neglect of personal appearance and hygiene, chronic sleep impairment, intrusive recollections of a traumatic experience, unprovoked hostility and irritability, inability to establish and maintain effective relationships, deficiencies in judgment, and suicidal ideation. In February 2021, the Veteran testified at a Board hearing. The Veteran testified that he is often alone, and that his family lives away, but he still talks to them on occasion. He lives with his fiancée. He testifies that he wakes up at night, thinking that there is something outside. He testified that he has a short-term memory problem. The Veteran testified that after his divorce he thought of hurting himself but does not anymore. Analysis of PTSD prior to January 16, 2020 The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher prior to January 16, 2020. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. VA treatment records, the July 2018 VA examination, and the Veteran's lay statements show that the Veteran's PTSD to include persistent depressive disorder with anxious distress and alcohol use disorder was manifested by symptoms associated with a 50 percent rating including, impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships, and symptoms contemplated in a 70 percent rating such as suicidal ideation. He also had symptoms that are not listed with a specific rating, such as hypervigilance, exaggerated startle response, and problems with concentration. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. Although the Veteran did experience some symptoms listed under the 70 percent rating criteria or similar to those contemplated by a 70 percent rating prior to January 16, 2020, including suicidal ideation, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. The Board acknowledges that the Veteran expressed that after his divorce he "did not care if he lived or died," and he felt that way when his children were taken from him. During the February 2021 hearing he reiterated that after his divorce he thought of hurting himself, but does not anymore, because he wants to go to heaven, and if he commits suicide he cannot go to heaven. The General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 provides disability ratings based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio, 713 F.3d at 117. As noted above, the majority of the Veteran's symptoms during the relevant period prior to January 16, 2020, were either contemplated by or more consistent with a 50 percent rating or lower. The Board acknowledges that the Veteran's private examiner indicated that he thought that the Veteran's symptoms were at a total occupational and social impairment level since May 2018. The Board respectfully disagrees because the Veteran's symptoms during the July 2018 VA medical opinion, and the Veteran's May 2018, lay testimony do not manifest to that level. While the private examiner may have reviewed the Veteran's file, "in total," it is the Board's responsibility to make factual determinations and weigh the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (discussing the Board's inherent authority "to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). Gilbert v. Derwinski, 1 Vet. App. 49, 52-53 (1990) (it is within the purview of the Board to make findings of fact and such findings may be disturbed only if clearly erroneous). The Board finds that many of the Veteran's symptoms are more appropriately contemplated under the 30 percent rating criteria such as depressed mood; anxiety; suspiciousness; mild memory loss, such as forgetting names, directions or recent events. The remaining symptoms beyond the suicidal ideation, which is discussed above, are more appropriately contemplated under the 50 percent rating criteria such as impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The Board also acknowledges the private examiner's statement that the January 2020 examiner stated that the Veteran continues to meet DSM V criteria for PTSD and that his condition remains essentially unchanged since the initial PTSD evaluation of July 31, 2018. The Board notes that the symptoms listed in the January 2020 examination increased since the July 2018 VA examination. However, both examiners found that the Veteran met the DSM V criteria for PTSD, which means that the Veteran still has PTSD, and his diagnosis has not changed. The examiner did not state that the Veteran's symptoms have not changed, because the number of symptoms clearly has increased. The Board also acknowledges that the Veteran was working until April 2016, when he was laid off. He indicated that he was on unemployment for 6 months after being laid off, and he looked for a job but was unsuccessful. See February 2020 correspondence. The Board notes that while the Veteran did not receive ongoing treatment for his PTSD condition, he did have PTSD screenings. The PTSD screenings demonstrated that the Veteran's disability increased because he reported that he was on constant guard, and that he was more detached from others. But these screenings do not demonstrate that the Veteran's symptoms manifest as a 70 percent rating. The Board acknowledges that the January 2020/June 2020 VA examiner opined that the Veteran's PTSD disability has not interfered with his work capacity but did negatively affect his family life. As to the rationale the examiner explained that the Veteran's alcohol abuse has not affected the Veteran's ability to maintain steady employment since discharge from the military and his retirement in 2016. The examiner was aware that the Veteran was laid off in 2016, which is noted in the January 2020 VA examination. The examiner stated that the Veteran would do best working by himself or as part of a small group as opposed to working with the general public. The Board also notes that the Veteran has been in an ongoing relationship with his [current] fiancée/partner for over 30 years. The record is inconsistent because the Veteran reported no contact with his children in the January 2020 VA examination but reported occasionally talking to his children during the February 2021 Board hearing. The Board is not suggesting that the Veteran does not isolate himself but is merely acknowledging an inconsistency in the record. The Board finds that the evidence does not demonstrate that the Veteran's PTSD manifested to a 70 percent rating prior to January 16, 2020. Specifically, the Veteran's symptoms during the relevant period prior to January 16, 2020, lie on the spectrum between the 30 percent rating criteria and the 70 percent criteria, but are much closer to the 50 percent rating criteria in terms of severity, frequency, and duration. The Board acknowledges that the Veteran's symptoms were more severe during the January 2020 VA examination, but there is no evidence that these symptoms worsened prior to the examination. Considering the Veteran was still working in 2016, and the Veteran's statements within his May 2018 statement would be most appropriately consistent with a 50 percent rating (beyond not caring if he lived or died due to his divorce), and the fact that there is no new evidence that would warrant a higher rating prior to January 16, 2020, the Board finds this date appropriate. Therefore, a rating in excess of 50 percent was not warranted prior to January 16, 2020. See also 38 C.F.R. § 4.7 In conclusion, the Board finds that the criteria for a rating in excess of 50 percent for the Veteran's PTSD to include persistent depressive disorder with anxious distress and alcohol use disorder including generalized anxiety disorder have not been met prior to January 16, 2020. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990). Analysis of PTSD from January 16, 2020 The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent from January 16, 2020. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. VA treatment records, the July 2018 and January 2020 VA examinations, the September 23, 2020 VA examination, and the Veteran's lay statements show that the Veteran's PTSD to include persistent depressive disorder with anxious distress and alcohol use disorder was manifested by symptoms associated with a 70 percent rating such as difficulty in adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; near continuous depression and anxiety; passive suicidal ideation, and symptoms associated with a 100 percent rating such as intermittent inability to perform activities of daily living; and persistent delusions or hallucinations. He also had symptoms that are not listed with a specific rating, such as hypervigilance, startling easy, decreased energy, feelings of guilt and worthlessness, psychomotor agitation, which more closely approximate to the symptoms contemplated by a 30 percent rating as they are similar to anxiety, suspiciousness, and depression. He also had symptoms of frustration tolerance, retardation, and unprovoked hostility and irritability which are more closely approximate the symptoms contemplated by a 50 percent rating as they are similar to impaired judgment and difficulty establishing and maintaining effective work and social relationships. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating or lower, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The July 2018 and January 2020 VA examiners concluded that the Veteran was not a danger to himself or others. The Veteran testified in the February 2021 Board hearing that after his divorce he thought of hurting himself but does not anymore. As described above the frequency, severity and duration of suicidal ideation is not severe enough to warrant a rating higher rating, solely due to the Veteran's thoughts after his divorce and his children living with their mother. The Board notes that there is no evidence in the record that the Veteran is in persistent danger of hurting himself or others, thus a 100 percent rating for suicidal ideation is not warranted. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The July 2018 VA examiner opined that the Veteran experienced occupational and social impairment with reduced reliability and productivity. The January 2020 VA examiner opined that the Veteran experienced occupational and social impairment with deficiencies in most areas, such as work, school family relations, judgment thinking or mood. The September 2020 private examiner opined that the Veteran experienced total occupational and social impairment. While the Veteran may have experienced symptoms contemplated by a 100 percent rating such as persistent delusions or hallucinations, and intermittent inability to perform activities of daily living, the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. The Veteran's July 2018 VA examination report did not note persistent delusions or hallucinations, and the September 2021 VA examiner explicitly stated that there was no evidence of hallucinations/delusions. The February 2021 VA examiner noted that there were persistent delusions or hallucinations but did not provide any context. The statements made by the Veteran and his significant other suggest that the Veteran has nightmares, and when he wakes up he is looking for something, that he thought he heard, and he sometimes thinks he saw, but when he looks it is not there. The Veteran testified at the February 2021 Board hearing that this occurs once a month or maybe twice a month. The Board acknowledges that the Veteran may have visual hallucinations, but the frequency, severity, and duration of these hallucinations do not appear to be persistent. Thus, the Board finds that the Veteran's hallucinations do not warrant a 100 percent rating. Regarding the Veteran's intermittent inability to perform activities of daily living the July 2018 VA examiner did not indicate that the Veteran neglected his hygiene, but the February 2020 private examiner indicated the Veteran did. The January 2020 VA examiner indicated that the Veteran symptoms included an intermittent inability to perform activities of daily living. The Veteran testified at the February 2021 Board hearing that he knew he had the hearing today so showered, shaved, and got dressed. However, on a normal week he showers once or twice a week. During the Veteran's February 2020 private examination, he reported that he showers at least every two or three days, it's not every day, and changes his clothes every two to four days. The Board does not find this to demonstrate that the Veteran has total and social impairment because he knew he needed to present himself well during the Board hearing, and the frequency, severity and duration is not severe enough to warrant a 100 percent rating. In conclusion, the Board finds that the criteria for a rating in excess of 70 percent for the Veteran's PTSD to include persistent depressive disorder with anxious distress and alcohol use disorder including generalized anxiety disorder have not been met at any time during the appeal period. While the Veteran has symptoms of hallucinations and at times, neglects his hygiene, the severity, frequency and duration of these symptoms collectively do not warrant a 100 percent rating. The Veteran's other symptoms are contemplated in the 70 percent rating or lower. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 49. 3. Entitlement to service connection for lumbar spine degenerative disc disease with incapacitating episodes is denied. The Veteran contends that his lumbar spine degenerative disc disease with incapacitating episodes (back disability) is related to service. Specifically, he contends that he hurt his back by straining from pulling cables "through the - - from bulkhead to bulkhead by hand." The Veteran also contends that he had to move shells around, and that they did not have any training on how to lift things. The Veteran's service treatment records do not show any complaints, diagnosis or treatment for a back condition. The Veteran's treatment records reveal he was treated for "urethritis acute due to gliococcus" and he was prescribed Penicillin. There were also notations about a chest x-ray and defective vision but, there are no notations about a back condition. The Veteran's June 1967 separation examination does not indicate that the Veteran had any back problems when he was discharged from service. During the February 2021 Board hearing, the Veteran testified that he did not receive treatment while on the ship because they did not have a doctor but just a medic, and they didn't do anything beyond giving you an aspirin. The Veteran testified, "I remember I only went there probably a handful of times at the most and then they would just try to get you back. They'd say well what are you trying to do just get out of work today." The Veteran testified that about 6 months after service he started having problems with his back. The Veteran did not seek medical treatment after service because he did not have insurance. The preponderance of the evidence is against finding that the Veteran's lumbar spine degenerative disc disease with incapacitating episodes began during active service or is otherwise related to an in-service injury or disease. 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. The Board concludes that, while the Veteran has a diagnosis of lumbar spine degenerative disc disease with incapacitating episodes, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Board emphasizes that it is aware that the Veteran has not received a VA examination following his service connection claim for his back disability. However, there is no probative evidence of an in-service event, injury, or disease or competent evidence suggesting a possible association between the current disability and service. Therefore, a VA examination is not required. See 38 C.F.R. § 3.159(c); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran's disability case"). The Board acknowledges the Veteran's contentions that he was unable to receive treatment. However, in this case, the absence of any medical evidence of treatment for the Veteran's claimed back disability following separation from service for over twenty years tends to show that the claimed disorder was not a result of his military service. As such, there is no basis for establishing service connection for the claimed disability on appeal. The Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). While the Veteran believes that his current back disability is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a back disability is a matter not capable of lay observation and requires medical expertise to determine. Accordingly, the Veteran's opinion as to the diagnosis or etiology of his back disability is not competent medical evidence. Based on the foregoing, the Board finds that the claimed back disability on appeal was not manifested during, or as the result of active military service. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) on reasonable doubt are not applicable. The claim of entitlement to service connection for a back disability must be denied. 4. Entitlement to service connection for left lower extremity radiculopathy as secondary to lumbar spine degenerative disc disease with incapacitating episodes is denied. The Veteran contends his left lower extremity radiculopathy as secondary to lumbar spine degenerative disc disease with incapacitating episodes. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. 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 question for the Board is whether the Veteran has a current disability that is proximately due to or the result of or was aggravated beyond its natural progress by a service-connected disability. In this case, the Veteran's lumbar spine degenerative disc disease with incapacitating episodes is not service connected. Thus, the Veteran is not entitled to service connection for left lower extremity radiculopathy secondary to this condition. (Continued on the next page) Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) on reasonable doubt are not applicable. The claim of entitlement to service connection for lower extremity radiculopathy as secondary to lumbar spine degenerative disc disease with incapacitating episodes must be denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist Associate Counsel 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.