Citation Nr: 1004451 Decision Date: 01/29/10 Archive Date: 02/16/10 DOCKET NO. 07-15 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a heart condition. 2. Entitlement to service connection for obstructive sleep apnea. 3. Entitlement to an initial rating in excess of 30 percent prior to November 30, 2007 and in excess of 50 percent from November 30, 2007 for Posttraumatic Stress Disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jennifer R. White, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1971. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The issues of a heart condition and obstructive sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. The preponderance of the evidence indicates that until November 30, 2007, the Veteran's PTSD manifested in sleep problems, nightmares; anxiety, depression and problems concentrating but without 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; or difficulty in establishing and maintaining effective work and social relationships. 2. The preponderance of the evidence indicates that from November 30, 2007, the Veteran's PTSD manifested in sleep problems, nightmares; anxiety, depression and problems concentrating but without obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affected 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); and inability to establish and maintain effective relationships. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for PTSD prior to November 30, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & West Supp. 2009); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2009). 2. The criteria for an initial rating in excess of 50 percent for PTSD from November 30, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & West Supp. 2009); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). The VCAA and its implementing regulations are applicable to this appeal. The VCAA and its implementing regulations provide, in part, that VA will notify the claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. They also require VA to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that such assistance would aid in substantiating the claim. The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, VA provided the veteran adequate notice and assistance with regard to the claims being decided such that the Board's decision to proceed in adjudicating these claims does not prejudice the veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). A. Duty to Notify The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court also indicated that the VCAA requires VA to provide notice, consistent with the requirements of 38 U.S.C.A. § 5103(A), 38 C.F.R. § 3.159(b), and Quartuccio, that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. However, the Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 have been revised, in part. See 73 Fed. Reg. 23, 353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in the claimant's possession. On March 3, 2006, the Court held that the aforementioned notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The Court further held that notice under the VCAA must inform the claimant that, if the RO grants his service connection claim, it will then assign such an award a disability rating and an effective date. Id. at 486. In this case, the RO provided the Veteran VCAA notice on the claim being decided by a letter dated August 2005, before initially deciding the claim in a rating decision dated September 2006. The timing of such notice reflects compliance with the requirements of the law as found by the Court in Pelegrini II. The content of such notices also reflects compliance with the requirements of the law as found by the Court in Pelegrini II. In the aforementioned notice letter, the RO acknowledged the claims being decided, notified the Veteran of the evidence needed to substantiate those claims, identified the type of evidence that would best do so, informed him of the VCAA and VA's duty to assist, and indicated that it was developing his claims pursuant to that duty. The RO also identified the evidence it had received in support of all of the claims being decided and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the Veteran in obtaining all outstanding evidence provided he identified the source(s) thereof. The RO also noted that, ultimately, it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. The RO advised the Veteran to sign the enclosed form authorizing the release of his treatment records if he wished VA to obtain such records on his behalf. The RO also advised the Veteran to identify or send directly to VA all requested evidence to support his claims. The content of this notice letter does not reflect compliance with the requirements of the law as found by the Court in Dingess/Hartman. However, such notice was submitted to the Veteran in a letter dated March 2006. The timing of such notice reflects compliance with the requirements of the law as found by the Court in Pelegrini II. The Board notes that the Veteran's appeal for an increased rating for PTSD from an initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2009). Thus, because the notice that was provided before service connection was granted was sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). B. Duty to Assist VA made reasonable efforts to identify and obtain relevant records in support of the claims being decided. 38 U.S.C.A. § 5103A(a), (b), (c) (West 2002). Specifically, the RO secured and associated with the claims file all evidence the Veteran identified as being pertinent to his claims, including service medical records and post-service VA and private treatment records. The Veteran does not now claim that there is any outstanding evidence for VA to secure in support of this appeal. The Board notes that the Veteran currently receives disability benefits from the Social Security Administration (SSA). Adjudicatory documents have been received concerning this award of Social Security benefits. The Board notes in this regard that the a psychiatric disorder is not indicated as the basis for the award and was not considered for Social Security purposes according to the Administrative Law Judge ruling which was submitted. Thus, the Board finds that there is no reasonable possibility that such records are relevant to the Veteran's claim for VA disability compensation. Golz v. Shinseki, No. 2009-7039 (Fed. Cir. Jan. 4, 2010)(when a SSA decision pertains to a completely unrelated medical condition and the veteran makes no specific allegations that would give rise to a reasonable belief that the medical records may nonetheless pertain to the injury for which the veteran seeks benefits, relevance is not established). Concerning the Veteran's claim for an increased rating for PTSD, the RO conducted medical inquiries in an effort to substantiate the Veteran's claims by affording him VA examinations, during which examiners addressed the disability at issue in this appeal. Under the facts of this case, 'the record has been fully developed,' and 'it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what additional evidence he should submit to substantiate his claim[s].' Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant); Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. Apr. 5, 2006) (holding that an error, whether procedural or substantive, is prejudicial when the error affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect to the extent that it affects the essential fairness of the adjudication). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2008); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2009); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2009); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2009). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as 'staged' ratings. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130. A 10 percent rating is warranted for PTSD where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating requires 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 conversion normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires 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 affected 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); and inability to establish and maintain effective relationships. A 100 percent rating is assigned when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board notes that in accordance with the General Rating Formula for Mental Disorders, a 100 percent rating is applicable if the manifestations of the service-connected psychiatric disorder result in total occupational and social impairment. Although the Rating Formula lists specific symptoms that are indicative of total impairment, the United States Court of Appeals for Veterans Claims has held that the symptoms listed in the Rating Formula are only examples, and that evidence of those specific symptoms is not required to show that the veteran is totally disabled. In rating a mental disability VA is required to consider all symptoms that affect her social and occupational functioning, and not limit consideration to those symptoms listed in the Rating Formula. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In other words, the primary consideration is whether the manifestations of the service-connected psychiatric disorder result in total social and occupational impairment, regardless of whether the veteran demonstrates those symptoms listed in the Rating Formula. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV)). A GAF score of 61 to 70 indicates some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or social functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130 (2009). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Turning to the evidence of record, a November 2005 VA emergency room psychiatry note indicates that the Veteran complained he felt depressed and that he could no longer work due to his heart condition. The Veteran indicated chronic thoughts of suicide but that he would never do so as he wanted to see his grandson grow up. The Veteran denied hallucinations or homicidal ideation; the Veteran declined hospital admission. The Veteran additionally received individual therapy at the VA during August 2006. The Veteran indicated that he did not have current suicidal or homicidal ideation. The Veteran was afforded a VA examination during September 2006. The Veteran indicated that he had been married for 35 years and that they got along pretty good. The Veteran indicated that he got along with his family, siblings, and had a few social relationships. The Veteran stated that he fished, watched television, took care of his grandson and met friends for coffee in the mornings. The Veteran complained of irritability; depression; nightmares; sleep problems; hyperstartle response; hypervigilance; poor concentration; anxiety; and withdrawal from social interaction. The Veteran's mood was dysphoric and anxious; affect was mildly restricted; hygiene was adequate; eye contact and behavior was appropriate; no impairment of thought processes or communication; speech within normal limits; and the Veteran was oriented. The Veteran reported that he had no delusions or hallucinations; no homicidal thoughts; daily suicidal thoughts with no intent on acting on them; fluctuating short term memory; mild obsessive- compulsive behavior such as counting various things which did not create a significant impact; no problems with impulse control; and periods of poor grooming. The Veteran also reported panic attacks approximately once every three months. The Board notes that the Veteran was hospitalized for five days during November and December 2007 at the VA Medical Center. The Board notes that the Veteran's disability rating for PTSD was raised to 50 percent as of the date of this hospitalization. The Veteran's GAF score on admission was 25-30 and on discharge was 50-55. The Veteran reported increased depression with abnormal sleep and eating patterns. The provider indicated that the Veteran had fair hygiene and grooming; appropriate eye contact; regular speech; depressed mood with flat affect; judgment and insight were fair; and the Veteran denied any suicidal or homicidal ideation, plan or intent. The Veteran indicated in a subsequent psychiatric follow-up that he had erred by cutting back on his psychiatric medications in the weeks leading up to his hospitalization. VA treatment records dated from January 2008 to March 2009 indicate that the Veteran had neat grooming and hygiene; nonpressured speech; calm and euthymnic affect of normal range; linear and nondelusional thinking; no suicidal or homicidal ideation; and unimpaired judgment and impulse control. A July 2008 treatment note indicates that the Veteran's PTSD symptoms were minimal at that time; however, current suicidal thinking was indicated with no plan or intent. A November 2008 treatment note indicates that the Veteran's GAF score was 39 and that he had begun experiencing severe depression due to his loss of eyesight. The provider indicated that the Veteran had sleep difficulty, irritability; difficulty concentrating; hypervigilance; a hyperstartle response; and daily suicidal ideation with no intent or plan. A September 2008 letter from a team leader at the Princeton Vet Center indicates that the Veteran complained of sleep problems; nightmares; fatigue; irritability; angry outbursts; suicidal ideation with no plan; avoidance; memory loss; problems with concentration; hyperstartle response; emotional numbing and loss of interest in activities. The provider indicates that the Veteran appeared anxious; with appropriate and clear speech; impaired memory; tense motor activity; fair judgment; and that he was oriented to time, place and person. The Veteran was afforded an additional VA examination during April 2009. The Veteran reported being married to his wife of many years and having a close relationship with his daughter and grandchildren. The Veteran indicated that he was very active taking care of his grandchildren and he attended church two times per week. The Veteran also reported going to VFW meetings weekly and having close relationships with his two brothers-in-law. The Veteran complained of depression; a hyperstartle response; hypervigilance; sleep problems; suicidal thoughts with no intent or plan; and anxiety. The examiner indicated that the Veteran's affect was broad and his mood was euthymic; he was friendly and cooperative; there was no impairment of thought processes or communication; no hallucinations or delusions; eye contact and behavior were appropriate; sufficient hygiene, although slightly declined; oriented; no significant memory impairment; mild obsessive behavior, although the Veteran indicated that he did these things because he was bored; normal speech; no problems with angry outbursts; and no panic attacks. The Veteran's GAF score was indicated as 60. Concerning the period prior to November 30, 2007, the Board notes that the Veteran complained of sleep problems, nightmares; anxiety, depression and problems concentrating but without 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; or difficulty in establishing and maintaining effective work and social relationships. The Board notes in this regard that the Veteran maintained a good relationship with his family to include his spouse of many years and friendships. Additionally, the Veteran's depression and anxiety with disturbances in mood and motivation are contemplated by the 30 percent rating. While the Veteran reported that he had suicidal thoughts or ideation during the relevant period, such singular symptom, when considered with her other symptomatology, does not reflect a level of disability consistent with the criteria for a 50 percent rating. The Board particularly notes that the Veteran reiterated many times that although he had fleeting suicidal ideation he had no intent or plan to follow through due to his religion and family ties. Thus, the Board finds that the preponderance of the evidence indicates that the Veteran's occupational and social impairment due to PTSD until November 30, 2007 is best contemplated by the 30 percent disability rating. The Board additionally notes that the Veteran's obsessional rituals were indicated as being out of boredom and having no affect on this functioning. Concerning the Veteran's hygiene, although he mentioned that he had some problems maintaining adequate hygiene, VA providers and examiners consistently noted that the Veteran's hygiene was at least adequate in their observations of the Veteran. Concerning the period beginning November 30, 2007, the Board notes that there is no indication of the Veteran experiencing obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affected 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 an inability to establish and maintain effective relationships. As indicated previously, although the Veteran indicated experiencing suicidal ideation, during the relevant period, such singular symptom, when considered with her other symptomatology, does not reflect a level of disability consistent with the criteria for a 70 percent rating. Thus, the Board finds that the preponderance of the evidence indicates that the Veteran's occupational and social impairment due to PTSD after November 30, 2007 is best contemplated by the 50 percent disability rating. The Board additionally notes that the Veteran's claim for total rating based on unemployability (TDIU) was denied in an October 2009 rating decision as the Veteran's non-service connected physical problems to include his diminished eyesight and longstanding heart problems culminated to render the Veteran unemployable; rather than PTSD or any other psychiatric disorder. . The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2007); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the Veteran's PTSD. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provides for additional or more severe symptoms than currently shown by the evidence; thus, her disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a total disability rating for the pendency of her appeal, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to an initial rating in excess of 30 percent prior to November 30, 2007 and in excess of 50 percent from November 30, 2007 for PTSD is denied. REMAND The Board notes that according to a SSA inquiry dated July 2006, the Veteran is in receipt of disability benefits from this agency. Adjudicatory documents have been associated with the claims file indicating that the Veteran's heart problems and sleep apnea were considered for disability purposes; however, there are no determinative medical records or application for SSA benefits contained in the claims file. Thus, additional records pertaining to the award of these benefits should be requested from the SSA. Relevant ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Request the SSA provide the records pertinent to the Veteran's claim for Social Security benefits as well as the medical records relied upon concerning that claim. 2. Additionally, relevant treatment records from the VA Medical Center in Salem should be obtained. All information, which is not duplicative of evidence already received, should be associated with the claims file. 3. Thereafter, the RO/AMC should readjudicate the claims. If the benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs