Citation Nr: 1209294 Decision Date: 03/12/12 Archive Date: 03/28/12 DOCKET NO. 10-15 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from June 1943 to January 1946. This matter came to the Board of Veterans' Appeals (Board) from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in February 2011 for further development. A review of the record shows that the RO has complied with all remand instructions by obtaining VA treatment records, affording the Veteran a VA examination in March 2011 and issuing a supplemental statement of the case. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified at a hearing before the Board at the RO in December 2010. A transcript is of record. The Board acknowledges the judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that decision, the United States Court of Appeals for Veterans Claims held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. On a statement dated in February 2012, the Veteran's representative reasonably raised a claim of entitlement to a TDIU. As a result, the issue is now included on the first page of this decision. In the March 2010 rating decision, the RO granted an increased rating of 50 percent, effective July 2009, for PTSD. The Veteran perfected appeal. By rating decision in October 2011, the RO granted a 70 percent rating, effective March 5, 2011. Although an increased rating has been granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned. See AB v. Brown, 6 Vet. App. 35 (1993). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to March 5, 2011, the Veteran's service-connected PTSD was manifested by occupational and social impairment, with reduced reliability and productivity. 2. From March 5, 2011, the Veteran's service-connected PTSD was not manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 50 percent for the Veteran's service-connected PTSD, prior to March 5, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.130 and Code 9411 (2011). 2. The criteria for entitlement to a disability evaluation in excess of 70 percent for the Veteran's service-connected PTSD, from March 5, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.130 and Code 9411 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in August 2009. The RO provided the appellant with additional notice in March 2010, subsequent to the initial adjudication. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the March 2010 notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in an October 2011 supplemental statement of the case, following the provision of notice in March 2010. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service and private treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran VA examinations in February 2010 and March 2011, and afforded the Veteran the opportunity to give testimony before the Board at the RO in December 2010. All known and available records relevant to the issued on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). 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. Id. at 126. Under the criteria for PTSD (set forth at 38 C.F.R. § 4.130, Diagnostic Code 9411), a 50 percent rating is assigned for occupational and social impairment, with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent schedular rating is warranted 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 relative, own occupation or own name. The Board recognizes that the Court in Mauerhan v. Principi, 16 Vet. App. 436 (2002), stated that the symptoms listed in VA's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. However, the Court further appears to have acknowledged that without those examples, differentiating between evaluations would be extremely ambiguous. Id. at 442. The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). According to the DSM-IV, a GAF score between 41 and 50 is indicative of 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); and a GAF score between 51 and 60 is indicative of 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 coworkers). Analysis I. Prior to March 5, 2011 As noted in the introduction, prior to March 5, 2011, the RO had assigned a 50 percent rating for the PTSD. The Board now looks to the evidence to determine whether a higher rating was warranted prior to that date. A July 2009 VA treatment record shows that he had restless sleep, hyperstartle response to loud unexpected noises and being approached from behind. He did not like large groups or talking about war related subjects. His goal was to find a better way to deal with lack of sleep and anger. There were no reported incidents of violence, problems with the law, or suicidal or homicidal ideation. The Veteran's symptoms had become much more pronounced since visiting Washington DC. It was observed that the Veteran was alert, attending, cooperative, and verbally interactive. The Veteran's mood was seen as subdued, dysphoric, anxious and irritable. His affect was mildly constricted. Speech had normal rate and tone with limited spontaneity. Appetite was good. Energy and interests decreased. There were no psychotic and delusional thoughts. There were also no suicidal and homicidal thoughts, plans and risks. The VA examiner diagnosed chronic severe PTSD and assigned a GAF score of 44. The Veteran was afforded a VA examination in February 2010. He reported a long history of sleep problems, nightmares, intrusive thoughts, flashbacks, exaggerated startled response, avoidance of reminders of war, and anger. He reported that he was not able to adequately fall asleep. He reported not having nightmares as frequently as he once did. He continued to avoid things that reminded him of war. The Veteran reported difficulty with exaggerated startle response, difficulty with loud noises, difficulty being in crowds and hypervigilance. He reported a history of difficulty of being in enclosed areas, but had adapted to that over the years. He reported no significant problems with anger or irritability. The Veteran reported intrusive thoughts one or two times a week of the war and flashbacks about 3 or 4 times a month. The Veteran reported a history of depressed mood and feeling hopeless when returning home, which somewhat improved. He reported some physical disability due to chronic pain. He reported adequate memory. He spent his days in a carpenter shop building picture frames and furniture. He retired after 31 years working in a Navy shipyard. As far as his social history, it was noted that he had been married to his wife for 63 years. He described himself as very social and having good friends. He reported adequacy completing his hygiene independently. Upon mental status examination, it was noted that he was generally alert and oriented to person, place, month, year and time. He was not oriented to date. Thought process was linear and history was adequate. Affect was mildly blunted. Insight was demonstrated. The VA examiner found that spontaneous speech was fluent, grammatical and free of paraphasias. Attention and memory were generally within normal limits for age. The Veteran did not report any overt symptoms of psychosis. He denied current suicidal or homicidal ideation. The VA examiner diagnosed PTSD and assigned a GAF score of 45. A March 2010 letter from Mark J. Krzyston, M.D. of the Cardiovascular Institute, P.A. shows that the Veteran developed increasing dementia. It was noted that the Veteran was very pleasant and answered questions seemingly appropriately. Dr. Krzyston found that the Veteran did not remember whether he had chest pain or shortness of breath. He also did not remember whether he had taken his medications or not. His wife was his primary caregiver and without her, the Veteran would not function at the level as he functioned. Dr. Krzyston noted that the Veteran would not remember his medical appointments, and whether or not he turned on the stove. Dr. Krzyston concluded the letter by asking that the Veteran be reconsidered as 100 percent disabled. A March 2010 private treatment record from Stefan L. Montgomery, M.D. shows that the Veteran's main problem was memory loss--trouble remembering and keeping his medications straight. He also had trouble managing his money. He stated that when he first returned from war, he was very jumpy and would startle easily. He would escape to the woods and stay there for days at a time. He was having flashbacks and concerns about paranoid type thoughts. Other than that, he had been doing okay. Dr. Montgomery found that the Veteran was not oriented to year, but was well-oriented to time, place, person, situation location, day, day of the week and date of the week. He was not able to recall two out of three objects at 5 minutes. He also was not able to spell "world" backwards. He was not able to do serial 7s or serial 3s. Dr. Montgomery thought that this could be Alzheimer 's disease or some other type of dementia. The Veteran had declined medication. An August 2010 VA treatment record shows that he struggled with restless sleep, multiple wakes, and war-related nightmares. He reported frustration not being able to work, which he always enjoyed. It was noted that he had a very strong work ethic and worked into the night so as not to dwell on his war memories. He continued to report irritability, isolation, avoidance of war-related information and had a hyperstartle response to loud unexpected noises or being approached from behind. He denied interval problems with the law, suicidal and homicidal ideation. He reported frustration with the heat, and whenever he compared what he used to be able to do and what he now can do. Recurring pain in his hips that traveled through his feet affected his memory, his ability to relax, to interact with others and to initiate and complete tasks. The Veteran was alert, attending, cooperative and verbally interactive. His mood was dysphoric, anxious, irritable and angry. His affect was described a full range a labile. His speech was normal in rate and tone. There was limited spontaneity. His appetite was good. His energy and interests had decreased. Thoughts were noted as liner, goal-directed and coherent. There were no psychotic thoughts or delusional thoughts. There were also no suicidal and homicidal thoughts, plans and risk. A GAF score of 52 was assigned. A November 2010 VA treatment records shows that the Veteran's wife reported worsening of symptoms-restless sleep, and recurring nightmares in which he thrashed around in bed and woke up tired and drenched in sweat. The Veteran continued to be irritable and to isolate himself. It was noted that the Veteran neglected his own personal care by skipping meals and baths. The Veteran had not been making any new friends or maintaining old ones. His own family got on his nerves sometimes. He continued to have a hyperstartle reaction to loud unexpected noises or being approached from behind. He appeared less able to tolerate frustration and his wife reported not feeling safe in bed with him. He continued to struggle with low back pain which radiated to his feet bilaterally. This affected his mood, ability to focus, memory and interaction with others. The Veteran denied suicidal and homicidal ideation and any use of drugs. The Veteran's wife reported increased perseveration on the Veteran's part about feeling let down by the VA. There was also increased confusion and forgetfulness, inability to initiate and complete tasks, repeat the same questions, and did not seem to be able to relate well to anyone lately. Upon mental status examination, it was noted that he was alert, attending, cooperative and verbally interactive. His mood was subdued, dysphonic, anxious and irritable. His affect was noted as full range, and labile. It was observed that the Veteran had normal rate and tone and that there was spontaneity in his speech. His appetite was deemed good. There was decreased energy and interests. Thoughts were linear, goal-directed and coherent. There were no psychotic thoughts, delusional thoughts, suicidal thoughts, suicidal plans, and suicidal risk. There were also no homicidal thoughts, plans and risk. There were no signs of dementia. The Veteran's GAF score was 46. In a November 2010 statement, the Veteran's brother-in-law stated that his sister told him about the Veteran's serious dreams in which the Veteran had attacked her while sleeping. He believed that these problems continued on and off and have recently become more active. He was told by his sister that the Veteran's dreams have worsened lately and is causing depression. At the December 2010 hearing before the Board at the RO, the Veteran testified he did not associated with many people and that he was constantly with his wife. She was the one who took care of their finances and his medication. His wife testified that his symptoms worsened when seeing war documentaries on television. The Veteran's dreams returned, he started fighting, and he became nervous around crowds. After reviewing the evidence, the Board must conclude that, a rating in excess of 50 percent prior to March 5, 2011, is not warranted. The Board acknowledges that there was evidence of occupational and social impairment with deficiency in thinking--specifically, loss of memory. Dr. Krzyston's March 2010 letter showed that the Veteran had developed increasing dementia and could not remember whether he took his medications and his medical appointments, for example. There was also evidence of occupational and social impairment with deficiency in mood. Here, the Veteran's mood was seen in August 2010 as dysphoric, anxious, irritable and angry. Furthermore, July 2009 and August 2010 VA treatment records show that energy and interests had decreased. However, there were no deficiencies in such as family relations and judgment. The Veteran had been described as alert, cooperative and verbally interactive. He had been married to his wife for over six decades, and had considered himself as very social with good friends. He spent his days in a carpenter shop making picture frames and furniture. While he was not oriented to date during the February 2010 VA examination, he was oriented as to all other spheres and the VA examiner found that the Veteran was an adequate historian. When looking at the symptoms specifically listed as examples for a 70 percent rating, the Board acknowledges that there was difficulty in adapting to stressful circumstances such as loud noises and crowds. The Board also acknowledges a November 2010 VA treatment report showing that the Veteran skipped baths. However, as for the remaining criteria, the Board notes that there was no evidence of suicidal ideation, as the Veteran had repeatedly denied it. There was no evidence of obsessional rituals which interfered with routine activities. Speech was not intermittently illogical, obscure, or irrelevant. Again, speech was described as having normal rate and tone. There was also no evidence of near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. There were no indications of inappropriate behavior at his medical appointments and the Veteran would isolate himself to deal with his symptoms. While the Veteran's wife did not feel safe at night sleeping next to him, there was no evidence of impaired impulse control (such as unprovoked irritability with periods of violence). It appears to the Board that his attacks were the product of his dreaming. Also, while the Veteran had irritability, he did not engage in violent behavior. While he was not oriented as to time, he was oriented in all other spheres. Thus, there was no spatial disorientation. While a November 2010 statement from the Veteran's friend described the Veteran as stubborn and uncompromising, and noted that the Veteran had not shown emotion toward his family throughout his life and had at times been estranged, the Board notes that was no inability to establish and maintain effective relationships as the Veteran had been married to his wife for over 60 years. While he did not visit his neighbors, his wife testified at the December 2010 hearing before the Board at the RO that their neighbors visited them. In February 2010, the Veteran's GAF score was a 45, which is indicative of serious symptoms reflected in a 70 percent rating. An August 2010 VA treatment record shows a GAF score of 52, which is indicative of moderate symptoms reflected in a 50 percent rating. However, a November 2010 VA treatment record shows a GAF score of 46, which is reflective of serious symptoms. Nevertheless, there was no indication of serious symptoms as the Veteran continually denied suicidal ideation. There were also no severe obsessional rituals or frequent shoplifting. There was also no serious impairment in social or occupational functioning. Here, the Veteran had been married to his wife for over 60 years and he did carpentry as a hobby. In an undated statement, the Veteran's wife stated that she was not allowed to be present during the Veteran's VA examination and noted that the Veteran did not provide the right answers. She asserted that if the VA examiner had taken five minutes to talk to her, "her decision would have been completely different. With a patient his age the wife should always be present." In a March 2010 statement, the Veteran disagreed with the VA examination report, which provided that the Veteran was able to handle his finances without assistance. The Veteran stated that he did not and had not in many years since his wife took care of that. He believed that if the examiner had allowed his wife to be present at the time of the examination, the VA examiner would have had a better understanding of what he can and cannot do. At the December 2010 hearing before the Board at the RO, the Veteran's representative asserted that the Veteran's wife could have provided a lot more accurate details since the Veteran was forgetting things. It appears to the Board that the Veteran and his wife are asserting that the VA examination was inadequate since the wife was not able to converse with the VA examiner. However, the Board notes that the Veteran's March 2010 statement exemplifies that he is able to share that he did not handle the finances in his family. Also, he was able to testify at the December 2010 hearing before the Board at the RO how his wife took care of his medications. Overall, the Board does not find that the February 2010 VA examination is inadequate. The Board notes that the VA examiner's assessment was based on interviewing and examining the Veteran and reviewing his entire claims file. The Veteran was certainly capable of elaborating more on his symptoms of PTSD as he had in statements and testimony. In fact, the examination report includes three pages worth of medical and psychiatric history, and social history. In sum, the Board concludes that a rating in excess of 50 percent prior to March 5, 2011, is not warranted. II. From March 5, 2011 Based on the results of a March 5, 2011, VA examination, the RO increased the PTSD rating to 70 percent, effective from that date. The Board now turns to consideration of whether an even higher rating was warranted. At the March 5, 2011 VA examination, the Veteran and his wife reported greater problems with nightmares, "thrashing in bed," and disrupted sleep. His wife stated that they had improved over time, but were recurring at an increased frequency and were concerning. The Veteran stated that ruminating thoughts of war, and hypervigilance around others had resulted in avoidance of all war-related information. The Veteran reported being intensely upset with recent war coverage and was exacerbated by recent interviews regarding his military experience. He also reported being intensely upset and instantly frustrated with perceptions about veterans. He believed that his service to his country was minimized or not validated. He reported that these feelings were all-consuming at times and had the inability to watch television because "we can't police the world of all these people and problems." He reported this his inability to engage in other activities worsened his symptoms of irritability, hypervigilance and rumination about war-related topics. The VA examiner stated that it is obvious that symptoms of PTSD have resulted in some interpersonal difficulties and specific difficulties in the Veteran's marriage, which was evidenced by his wife's feelings of guilt and feeling responsible for symptoms that have manifested in the Veteran after making him watch television shows related to World War II conflicts. The Veteran's wife assisted with him to his appointments, and managing his medications and cooking. The Veteran was still able to handle eating, dressing, toileting and other activities of daily living. Upon mental status examination, the Veteran was cooperative and engaged in conversation. The VA examiner stated that the Veteran has some noted poverty of content, consistent with age-related cognitive decline. The Veteran was initially euthymic, but became dysphonic at times; specifically, when discussing issues surrounding combat and his feelings of invalidation for his service to his country and disconnect with others in a social setting. There was no suicidal ideation, homicidal ideation or harmful intent. The Veteran correctly identified the month and year, even though he initially struggled to state the word, "March." The VA examiner commented that it is likely that the Veteran had a recent exacerbation of PTSD symptoms. His rumination regarding his time in service and his feelings of not having other veterans to relate to appear more prominent than in past encounters. The VA examiner found that the Veteran's specific focus on "combat versus noncombat Veterans" has become consuming. It had impacted his social and occupational functioning, and his interaction with other Veterans within the retirement community. He and his wife reported problems with nightmares and interrupted sleep as becoming increasingly problematic. The Veteran's avoidance of activities was causing impairment in social functioning. At the time of the examination, the Veteran appeared to have no problems with direction sense or visuospatial skills that would warrant a diagnosis of Alzheimer's dementia. The VA examiner not only diagnosed PTSD, but also diagnosed cognitive disorder, not otherwise specified. The VA examiner assigned a GAF score of 48. The VA examiner found that the Veteran's decline in function did not appear solely related to cognitive decline. With reasonable degree of medical certainty, the VA examiner believed that the Veteran had a recent increase in the severity of his symptoms of PTSD. The VA examiner believed that the Veteran and his wife were accurate historians and there was no evidence of exaggeration of symptoms. The VA examiner commented that it did appear that there was a misunderstanding in regards to the nature of service connected disability that complicated the case. A March 2011 VA treatment record shows that in a suicide risk screen, the Veteran denied feeling hopeless about the present or future, and having thoughts of suicide. An April 2011 VA mental health treatment plan note shows that the Veteran's strengths were capacity for empathy, impulse control, intelligence, judgment, social skills, spiritual beliefs, educational background, community support, access to transportation, financial stability, communication skills, vocational background, and capacity for stable relationships. The Veteran's GAF score was a 49. An April 2011 VA mental health outpatient notes reveal that the symptoms of distressed sleep, multiple wakings and war-related nightmares are still present as are the rest of the PTSD symptoms including isolation, irritability, avoidance of war-related memories and discussion, self disregard and hyperstartle response to loud unexpected noises or being approached from behind. The Veteran's weight and appetite, and energy and interests were deemed about the same. The Veteran denied interval problems with the law, suicidal/homicidal ideation or use of recreational drugs. It was noted that the diagnosis of dementia is not as easy to make since the Veteran did have moments according to his wife where he is clear and when he took pain medication, it made him more confused although he slept better. It was observed that the Veteran was alert, cooperative, and verbally interactive. The Veteran's mood was dysphoric, anxious irritable and angry. Affect was noted as having full range and being labile. Speech had normal rate and tone with limited spontaneity. Appetite was good. Energy and interests decreased. Thoughts were linear, goal directed and coherent. There were no psychotic or delusional thoughts. There were also no suicidal or homicidal thoughts, plans and risk. A September 2011 VA nursing note shows that the Veteran's GAF score was a 50. A September 2011 VA mental health outpatient treatment note shows that the Veteran and his wife were planning to move closer to their children. The Veteran continued to struggle with restless sleep, multiple wakings, and service-related nightmares. He would wake up tired and irritable. He had lost 20 pounds since his last visit due to decreased intake. He had become weaker and reconditioned due to inactivity and pain. His wife reported that the Veteran had increased dizziness. She was concerned about his falling. It was observed that the Veteran was alert, cooperative, and verbally interactive. The Veteran's mood was dysphoric, irritable and angry. Affect was noted as having full range and being labile. Speech had normal rate and tone with limited spontaneity. Appetite was this time poor. Energy and interests decreased. Thoughts were linear, goal directed and coherent. There were no psychotic or delusional thoughts. There were also no suicidal or homicidal thoughts, plans and risk. The Board acknowledges that in a statement received in November 2011, the Veteran stated that he did not do anything with his family or church as he had in the past. Although the Veteran's avoidance of activities was seen as causing impairment in social functioning, he was still married to his wife, and the Veteran was cooperative and engaged in conversation at his medical appointments. He was able to eat, dress and perform other activities of daily living. An April 2011 VA treatment report shows that his strengths lie in his ability to have empathy, judgment, social skills and capacity for stable relationships. His GAF score ranged from 48 to 50, which is indicative of serious symptoms reflected in a 70 percent rating. The Veteran was able to state the month and year. Additionally, the VA examiner found that the Veteran was an accurate historian. Furthermore, it appears from the statement received in November 2011 that he had been in contact with his family, friends and other relatives as he is constantly reminded by them of the names of his grandchildren. Additionally, the Veteran and his wife moved to be closer to their children. Further, when considering the symptoms specifically listed under the maximum rating, there was no evidence of gross impairment in thought processes or communication. Again, the Veteran was cooperative and was able to converse. There was no evidence of persistent delusions or hallucinations, as well. There was no persistent danger of hurting self or others. The Veteran denied suicidal and homicidal ideation. Although the Veteran's wife drove and cooked for him, and managed his medications, the Veteran was able to eat dress and engage in other activities of daily living. While the Board acknowledges that veteran stated forgetting the names of his grandchildren, there was no evidence that he had forgotten his past occupation or own name. The Board has carefully considered the evidence of the severity of the PTSD and resulting impairment from March 5, 2011, on. However, the preponderance of the evidence is against a finding that there has been total social and occupational functioning due to the types of symptoms listed as examples for the next higher rating of 100 percent. In this regard, it is stressed that the examples of symptoms listed for a 100 percent rating paint the picture of an individual who would be viewed as only marginally in touch with reality. The Veteran has not demonstrated symptoms such as persistent delusions or hallucinations, nor has he exhibited grossly inappropriate behavior. There is no persuasive evidence of gross impairment in thought processes or communication. It is not shown that his PTSD results in a persistent danger of hurting himself or others. There is some disorientation to time on occasion, as well as memory loss for certain words. It would appear that the Veteran's cognitive disorder plays a role in such symptoms. However, even if all of the impairment is assumed to be due to the PTSD, the overall disability picture simply does not approximate the level of impairment and types of symptoms listed for a 100 percent rating. The Board stresses to the Veteran that a significant level of impairment due to the PTSD has already been recognized by assignment of the 70 percent rating. However, the Board is bound to apply the regulatory criteria for rating PTSD, and for the reasons set forth above the Board finds that the preponderance of the evidence is against assignment of a rating in excess of 70 percent from March 5, 2011. The question of whether the PTSD (and other disabilities which may be service-connected) precludes gainful employment is a separate matter governed by separate laws and regulations, and is addressed in the remand section of this decision. Extraschedular Consideration In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely with the criteria found in the relevant Diagnostic Codes for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. ORDER Entitlement to a rating in excess of 50 percent for service-connected PTSD, prior to March 5, 2011, is not warranted. Entitlement to a rating in excess of 70 percent for service-connected PTSD, from March 5, 2011, is not warranted. The appeal is denied to this extent. REMAND The other issue before the Board involves the Veteran's TDIU claim. The issues of entitlement to service connection for traumatic brain injury, pain, degenerative joint disease; and coronary artery disease, diabetes, diabetic neuropathies, hypertension and gastroesophageal reflux disorder (to include as due to the Veteran's service-connected PTSD) have been raised by the record (specifically, in the representative's February 2012 statement). Such issues must be viewed as intertwined with the TDIU issue. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. The RO should take appropriate action to develop and adjudicate the new claims of service connection for traumatic brain injury, pain, degenerative joint disease; and coronary artery disease, diabetes, diabetic neuropathies, hypertension and gastroesophageal reflux disorder (to include as due to the Veteran's service-connected PTSD). The Veteran and his representative should be furnished notice of the determination and notice of appellate rights and procedures. 2. The Veteran should then be scheduled for an appropriate VA examination regarding the TDIU issue. It is imperative that the claims file be made available to the examiner for review in connection with the examination. All examination findings should be clearly reported. The examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's service-connected disabilities render him unable to engage in substantially gainful employment. 3. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and determine whether TDIU is warranted. The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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 is 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. 2011). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs