Citation Nr: 1127036 Decision Date: 07/20/11 Archive Date: 07/29/11 DOCKET NO. 09-41 982A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD), to include the permanency of the rating. 2. Entitlement to a permanent total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from January 1998 to May 1998 and from March 2003 to July 2004. This case is before the Board of Veterans' Appeals (Board) on appeal from May 2009 and July 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran testified at a hearing before the undersigned in Washington, DC in January 2011. A transcript of the hearing is of record. Subsequent to the September 2009 Statement of the Case (SOC), additional medical evidence was received; however, the Veteran waived his right to initial review of this evidence by the agency of original jurisdiction in a January 2011 statement. See 38 C.F.R. § 20.1304 (2010). FINDINGS OF FACT 1. For the period of the appeal, the Veteran's PTSD has been manifested by no more than occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to symptoms such as: impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Total occupational and social impairment, due to symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting himself 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; has not been shown. 2. The evidence does not show that the Veteran's disability due to PTSD is permanent with no likelihood of improvement. 3. Permanent improvement of the Veteran's service-connected disabilities under treatment is not remote and it is not reasonably certain that his inability to obtain and maintain substantially gainful employment will continue throughout his remaining life. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD, to include the permanency of the rating assigned, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.327, 3.344, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2010). 2. The requirements are not met for a permanent TDIU. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.3, 4.7, 4.15 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters mailed in January 2009 and March 2009, prior to the initial adjudication of the claims. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records (including VA and private) has been completed. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claims. The Board is also unaware of any such records. Moreover, the Veteran has been afforded appropriate VA examinations. Accordingly, the Board concludes that VA has complied with its duty to assist the Veteran. Accordingly, the Board will address the merits of the claims. II. Background The Board has reviewed all of the evidence in the Veteran's claims files, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decisions, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Historically, the Veteran's service personnel records note that his National Guard unit was activated on September 11, 2001, in response to the attack on the World Trade Center. A May 2006 VA examination report notes the Veteran's diagnosis of PTSD related to his military service. A January 2007 rating decision granted service connection for PTSD. The Veteran's PTSD is currently rated 70 percent disabling, effective March 1, 2007. In September 2007, the Veteran submitted a formal claim for TDIU. He claimed that he was unemployable due to his service-connected PTSD, hearing loss disability and tinnitus, and that he had not worked full time since June 2007 when he was employed as a housekeeper. He indicated that he was 29 years old, had completed 11th grade, and had not had any other education or training. A September 2007 VA treatment outpatient record notes the Veteran's symptoms of "significant" irritability which affects his relationship with his family and his ability to work. The examiner also noted the Veteran's history of heavy alcohol use, and cocaine and cannabis abuse, now in early remission. Examination revealed that the Veteran was casually dressed with good hygiene; he was alert and oriented. He denied homicidal or suicidal ideation, delusions, or hallucinations. Speech was fluent and prosodic, with normal rate and volume. Mood was irritable. Affect was congruent and reactive, with full range. Thought processes were goal directed, without looseness of association or flight of ideas. Thought content was free of delusions. Insight was poor and likely to affect the Veteran's judgment. Impulse control was good. The examiner opined that the Veteran was not employable. A Global Assessment of Functioning (GAF) score of 55 was provided. In a January 2008 rating decision, the RO granted TDIU, effective July 27, 2007, the date that the Veteran last worked. In January 2008, the Veteran submitted a claim seeking a permanent and total rating. He stated that he was unable to work. VA outpatient treatment records dated in 2008 note symptoms of irritability, insomnia, nightmares, anger and anxiety. Hygiene and grooming were good. The Veteran denied suicidal or homicidal ideation, hallucinations, delusions. GAF scores of 48 and 55 were provided in February 2008 and July 2008. In October 2008, a VA psychiatrist provided a GAF score of 55 and opined that the Veteran was not employable. A March 2009 VA psychiatry intake record notes that the Veteran was admitted for help with his PTSD. The Veteran complained of intrusive thoughts and flashbacks on a regular basis, anxiety and panic when around more than two or three people at a time, problems falling asleep, nightmares most nights, hypervigilence, exaggerated startle response, anger (expressed by yelling and throwing things) and some depression. He reported a fleeting suicidal thought in January 2009, but denied any intent or plan. He denied feelings of hopelessness, helplessness, or worthlessness. He denied any recent physical aggressive behavior towards others. The Veteran indicated that he had a supportive wife and children, and would never hurt them by his actions. He enjoyed walking outside and going hunting with his sons. He reported being sober since 2005. GAF score was 40-45. An April 2009 VA behavioral health progress notes that the Veteran arrived on time for his appointment and was invested in obtaining help for his PTSD. He reported continued problems in social settings involving groups of people, noting that he tended to avoid such settings. He reported enjoying a good relationship with his wife and an abstinence from substance abuse. He also reported opening up his home to a friend who was going through a difficult time. He indicated that he was taking his family on a trip to visit his grandmother for Easter. On examination, the Veteran was neatly and appropriately dressed. His grooming and hygiene were good. He was fully oriented; his social interaction was engaged and appropriate. He stated that his mood was less depressed but he continued to experience problems with irritability. His affect was mildly anxious. Judgment and insight were fair. His speech was of normal rate, flow and volume; speech content was well organized with no evidence of delusions, hallucinations, or paranoia. He denied homicidal or suicidal ideation. Ongoing treatment was planned. The examiner noted that the Veteran had "made progress in the past 18 months in treatment" but his PTSD symptoms continued to "prevent his ability to function in a conventional work setting or in a typical manner in public social situations." An April 2009 VA examination report notes the Veteran's complaints of problems sleeping because of nightmares, irritability, panic attacks, anxiety and depression. The Veteran reported that he got along with his wife but they did have their issues. Other than that he had no friends. He spent his days walking through the woods, fishing, and taking his sons hunting. He reported that he used to have a violent reactive streak but had learned to control it. He denied any aggression, violence, or suicidal ideation. On examination, the Veteran was oriented in all spheres. He was agitated and fidgety. Concentration and speech were impaired. The Veteran became frustrated easily. He claimed that he had general suicidal and homicidal thoughts but denied having any specific plans or intentions. Diagnosis was PTSD. A GAF score of 48 was provided. The examiner opined that the Veteran exhibited total social and occupational impairment due to PTSD. VA outpatient treatment records dated May 2009 to September 2009 note that the Veteran was seen for ongoing treatment for PTSD. His symptoms during this time included irritability, anxiety, occasional stuttering and insomnia. The examiners noted no symptoms of mania, delusions, psychosis, looseness of association, flight of ideas, poor hygiene, poor impulse control, suicidal ideation, or episodes of violence. He denied drug or alcohol use. GAF scores of 55 were assigned in May, July and September. In July 2009 the Veteran's treating psychiatrist noted that his symptoms had notably improved with medication changes and opined that the Veteran was not employable. A September 2009 VA psychiatry intake report notes the Veteran's complaints of stuttering, nightmares, depression, irritability, flashbacks, hypervigilance, exaggerated startle response, increased problems with memory and concentration. He indicated that he had been yelling a lot but denied physical aggression. He stated that he sometimes heard voices at night. He reported last using marijuana three weeks ago but denied using alcohol or cocaine since 2005. He denied suicidal and homicidal ideation. The Veteran described his family as supportive. GAF score of 40-45 was assigned. An April 2010 letter from the superintendent of his child's school district notes that the Veteran slapped a box of juice drinks across the student office, used profanity in front of students and kicked an office door. The Veteran was informed that his visitation rights to the school had been revoked. In a handwritten note, the Veteran admitted to a confrontation, but denied using profanity or kicking a door. In a December 2010 statement, the Veteran's treating VA psychologist noted that the Veteran had made some treatment gains and had generally been more stable over the past couple of years, but continued to experience difficulty controlling his anger. He still had difficulty maintaining close interpersonal relationships and tolerating direction from authority figures. The Veteran's psychologist opined that the Veteran would fare poorly in a traditional work setting. In a December 2010 statement, the Veteran's treating VA psychiatrist noted the Veteran's history of tinnitus, PTSD, and drug and alcohol abuse (in remission). He noted the Veteran's treatment at the clinic began in 2006, with variable response initially. However, the Veteran's condition had improved overall in the past year. Currently, the Veteran's symptoms included irritability, social isolation, avoidance, nightmares, occasional anxiety and stuttering. He noted that the Veteran has not been able to seek or maintain employment. In a February 2009 statement and January 2011 hearing testimony the Veteran reported that he was unable to work because of "angry outbursts." He indicated that because of his fear of crowds his social life consisted of activities with family at home. His wife testified that the Veteran had no friends except for family members. The Veteran testified that he had acquaintances that are veterans, but none that are civilians. III. Analysis -PTSD The present appeal involves the Veteran's claim that the severity of his service-connected PTSD warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. 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. Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, the 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 an evaluation 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 evaluating the level of disability from a mental disorder, the VA 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(b). Under 38 C.F.R. § 4.130, Diagnostic Code 9411, PTSD is rated under the General Rating Formula for Mental Disorders. A 100 percent evaluation is warranted for total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting himself 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. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to symptoms such as: suicidal ideation; obsessional rituals which interfere with routine activities; 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 or hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. In assessing the evidence of record, it is important to note that the GAF score is based on a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). Global Assessment of Functioning (GAF) Scale Consider psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Do not include impairment in functioning due to physical (or environmental) limitations. 100 ? 91 Superior functioning in a wide range of activities, life's problems never seem to get out of hand, is sought out by others because of his/her many positive qualities. No symptoms. 90 ? ? ? 81 Absent of minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). 80 ? ? 71 If symptoms are present, they are transient and expectable reactions to psycho-social stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). 70 ? ? 61 Some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful relationships. 60 ? ? 51 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). 50 ?? 41 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). 40 ? ? ? ? 31 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; child frequently beats up younger children, is defiant at home, and is failing at school). 30 ? ? ? 21 Behavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day; no job, home or friends). 20 ? ? ? 11 Some danger of hurting self or others (e.g., suicidal attempts without clear expectation of death; frequent violent; manic excitement) OR occasionally fails to maintain minimal personal hygiene (e.g., smears feces) OR gross impairment in communication (e.g., largely incoherent or mute). 10 ? ?1 Persistent danger of severely hurting self or others (e.g., recurrent violence) OR persistent inability to maintain minimal personal hygiene OR serious suicidal act with clear expectation of death. 0 Inadequate information The symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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 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(b). Rating agencies are to handle cases affected by changes in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the VA laws and regulations. 38 C.F.R. § 3.344. However, when a disability has not become stabilized or is likely to improve, re-examination and, if necessary, reevaluation of the assigned disability rating is warranted. Id. Re-examination will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Generally, no periodic re- examination will be scheduled if the disability is established as static; when the findings and symptoms shown by examinations have persisted without material improvement for a period of five years or more; where the disability is permanent in character and of such nature that there is no likelihood of improvement; in cases of veterans over 55 years of age, except under unusual circumstances; when the rating is the prescribed scheduled minimum rating; or where combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions. 38 C.F.R. § 3.327. However, none of the above guidelines are to be construed as limiting VA's authority to request reexaminations, or periods of hospital observation, at any time in order to ensure the disabilities accurately rated. Id. Any disability which has been continuously rated at or above any evaluation of disability for 20 or more years for VA compensation purposes may not be reduced except upon a showing that such rating was based on fraud. 38 C.F.R. § 3.951(b). The Veteran's PTSD with depression is currently rated as 70 percent disabling, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Review of the medical evidence of record shows that the Veteran's PTSD has been characterized primarily by nightmares, anger, social isolation, depression, irritability, hypervigilance, and occasional periods of violence. Additionally, in September 2009 the Veteran reported some memory problems and occasionally hearing voices at night. Repeated examinations revealed no evidence of suicidal ideation; gross impairment in thought processes or communication; persistent danger of hurting himself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); or disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Overall, the Veteran's thought processes and content were normal and judgment and insight were intact. While there is a history of some nighttime auditory hallucinations reported in 2009, there was no evidence of persistent delusions or hallucinations. Examinations showed the Veteran to be oriented to time and place. While the Veteran reported some difficulties with memory in 2009, there was no evidence for memory loss including the names of close relatives, own occupation or his own name. GAF scores were assigned in September 2007 (55), February 2008 (48), July and October 2008 (55), March 2009 (40-45), April 2009 (48), May, July and September 2009 (55), and September 2009 (40-45). However, GAF scores alone do not provide a basis for the assignment of a higher disability rating for PTSD. According to the Fourth Edition of American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), a GAF score is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental-health illnesses. The GAF score and the interpretation of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). The GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). While a GAF score of 40 indicated severe symptoms, after a careful review of the entire record, the Board finds that the Veteran has not manifested symptoms typically considered indicative of the level of impairment to warrant a 100 percent rating, to include: gross impairment in thought processes or communication; persistent danger of hurting himself 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. While the Veteran did exhibit some symptoms associated with a 100 percent rating such as occasional auditory hallucinations in 2009, as well as some memory problems and intermittent periods of violence, the overall disability picture is more analogous to that contemplated by the 70 percent rating. Thus, the criteria for the next higher 100 percent rating have not been met. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the Veteran has not required frequent hospitalizations for PTSD and that the manifestations of PTSD are not in excess of those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from PTSD would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. Finally, the Veteran argues that the medical evidence reflects that the symptomatology of his service-connected PTSD is not going to improve, and thus, that the assigned rating should be a permanent rating and not subject to re-examination. The Board observes that the currently assigned 70 percent rating evaluation has been in effect for less than five years; thus, it has not reached protected status. The Veteran is under the age of 55. With regard to possible improvement of the Veteran's symptomatology, careful review of the medical evidence shows that the Veteran has seen periods of improvement in the past. Specifically, in March 2009, a VA examiner noted that the Veteran had "made progress in the past 18 months in treatment." In July 2009 the Veteran's treating psychiatrist noted that his symptoms had notably improved with medication changes Therefore, it is apparent that there is still a chance for improvement in the Veteran's PTSD. Moreover, as indicated, even if the symptomatology of the Veteran's disability was considered static, it is within VA's purview to schedule another VA examination to assess the current severity of the disability. Therefore, the Board concludes that the preponderance of the evidence does not support the Veteran's claim that his 70 percent disability rating for PTSD is permanent in nature. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.340(b). IV. Analysis -Permanent TDIU A total rating based on unemployability due to service- connected disabilities may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue to exist throughout the life of the disabled person. Disabilities which are totally incapacitating will be regarded as permanent and totally disabling when improvement under treatment is remote and whether one or all of the appellant's service-connected disabilities are "reasonably certain to continue throughout the life of the [appellant]." 38 C.F.R. § 3.340(b); see also KL v. Brown, 5 Vet. App. 205, 208 (1993) (factors to consider include failure to pursue treatment, and whether the disease has been shown to be of longstanding duration, actually totally incapacitating, or of such a nature as to render the probability of permanent improvement remote). Further, unlike the test for individual unemployability, age is an allowable and appropriate consideration in making this determination. 38 C.F.R. § 3.340(b). Re-examination will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Generally, no periodic re- examination will be scheduled if the disability is established as static; when the findings and symptoms shown by examinations have persisted without material improvement for a period of five years or more; where the disability is permanent in character and of such nature that there is no likelihood of improvement; in cases of veterans over 55 years of age, except under unusual circumstances; when the rating is the prescribed scheduled minimum rating; or where combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions. 38 C.F.R. § 3.327. As noted above, VA treatment records, examination reports dated since September 2007 have consistently noted that the Veteran is unemployable. Likewise, in a December 2010 statement the Veteran's treating psychiatrist noted that the Veteran was unable to seek or maintain employment. There is no medical evidence to the contrary. Nevertheless, given the evidence of record, to include the Veteran's relatively young age, the Board cannot conclude that there is no likelihood of improvement in the service-connected disabilities, especially PTSD. As mentioned above, in March 2009 a VA examiner indicated that treatment during the preceding 18 months had resulted in "progress" in the Veteran's PTSD and in July of that year it was noted that medication had brought improvement in his symptoms. Accordingly, permanence of the currently assigned TDIU is not shown at this time. ORDER Entitlement to a rating in excess of 70 percent for PTSD, to include the permanency of the rating assigned, is denied. Entitlement to a permanent TDIU is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs