Citation Nr: 1223167 Decision Date: 07/03/12 Archive Date: 07/13/12 DOCKET NO. 98-12 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD) prior to April 16, 2004, and a rating in excess of 70 percent from April 16, 2004, forward. 2. Entitlement to an initial rating in excess of 10 percent for post-concussion headaches prior to January 6, 2011, and a rating of 30 percent from January 6, 2011, forward. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 4, 2007. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran had active service from September 1951 to September 1954. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of July 1996 by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). For combat service in Korea, the Veteran was awarded the Purple Heart Medal. The Board issued a decision denying this appeal in June 2008. In July 2009, and pursuant to a Joint Motion for Remand, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision. The Board remanded the claim to the RO in December 2010. The Board notes that the July 1996 rating decision granted service connection (and a 10 percent rating) for post concussion headaches. In February 2012, the RO issued a rating decision in which it increased the rating to 30 percent effective January 6, 2011. Since the effective date of the increase does not date back to the date of the receipt of the claim, there are two distinct time periods to consider. The Board notes that the Veteran filed a claim for entitlement to a total disability rating based on individual unemployability (TDIU) that was received on December 4, 2007. The RO has since issued a June 2008 rating decision in which it granted the TDIU effective from December 4, 2007 (the date of the claim). In the Veteran's March 2012 Informal Hearing Presentation, he alleges that he should be entitled to a TDIU prior to December 2007. He argues that pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), his increased rating claim included a claim for entitlement to a TDIU. The Court in Rice held that claims for higher evaluations also include a claim for a TDIU when the appellant claims he is unable to work due to a service connected disability. In this case, when the Veteran filed his claim for an increased rating, he did not claim that he was unable to work due to a service connected disability. To the contrary, the Veteran was still employed when he filed the claim. However, the record reflects that the Veteran retired in July 2003 and he attributed the cause of that retirement to physical problems (pain in his legs and knees). The Board notes that the Veteran is currently receiving a noncompensable rating for residuals of a shell fragment wounds to the legs. The Board notes that no physician indicated that the Veteran is unemployable solely due to a service-connected disability until June 2008. Moreover, the service connected disability cited was PTSD (and not the Veteran's legs and knees). Nonetheless, the Board finds Rice to be applicable. Therefore, the issue of entitlement to a TDIU prior to December 4, 2007 has been added as an additional claim entitled to current appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a TDIU prior to December 4, 2007 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 April 16, 2004, the Veteran's PTSD was not manifested by severe impairment of the Veteran's ability to establish and maintain effective or favorable relationships with people, or psychoneurotic symptoms so severe and persistent as to cause severe impairment in the ability to obtain or retain employment ("old" criteria); or occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships (current criteria). 2. Effective April 16, 2004, the Veteran's PTSD is not manifested by 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. Likewise, his PTSD has not caused attitudes of all contacts except the most intimate be so adversely affected as to result in virtual isolation in the community; there have not been totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic, and explosions of aggressive energy) associated with almost all daily activities resulting in a profound retreat from mature behavior; and the individual has not thereby demonstrably unable to obtain or retain employment. 3. Prior to August 26, 2006, the Veteran's post concussion headaches were not manifested by diagnosis of multi-infarct dementia associated with brain trauma or characteristic prostrating attacks occurring on an average of once a month over the last several months. 4. Effective August 26, 2006, the Veteran's post concussion headaches are manifested by characteristic prostrating attacks occurring on an average of once a month over the last several months. They are not manifested by very frequent completely prostrating and prolonged attacks productive of severe economic adaptability. CONCLUSIONS OF LAW 1. Prior to April 16, 2004, the criteria for entitlement to a disability evaluation in excess of 50 percent for the Veteran's service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Code 9411 (November 7, 1996) and 9411 (2011). 2. Effective April 16, 2004, the criteria for entitlement to a disability evaluation in excess of 70 percent for the Veteran's service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Code 9411 (November 7, 1996) and 9411 (2011). 3. Prior to August 26, 2006, the criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected post concussion headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Codes 8045-9304 (prior to October 23, 2008) and 8100 (2011). 4. Effective August 26, 2006, the criteria for entitlement to a disability evaluation of 30 percent, but no higher, for the Veteran's service-connected post concussion headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Codes 8045-9304 (prior to October 23, 2008) and 8100 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify Upon receipt of a complete or substantially 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 Veteran's claims for increased evaluations follows the initial grant of service connection for these disabilities. Once a claim of service connection have been substantiated, the filing of a notice of disagreement with the RO's decision rating the disability or assigning an effective date does not trigger additional 38 U.S.C.A. § 5103(a) notice. Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Nevertheless, the RO provided the appellant with notice in August 2003 and March 2006, subsequent to the initial July 1996 adjudication. While the 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 a February 2012 supplemental statement of the case, following the provision of notice. The appellant has not alleged any prejudice as a result of the untimely notification, nor has any been shown. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the Veteran physical examinations in June 1996, September 2011, August 2006, January 2011, and April 2011, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the appellant has not contended otherwise. Increased Ratings The present appeal involves the Veteran's claim that the severity of his service-connected post-concussion headaches 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). For historical purposes, it is noted that service connection was established for PTSD by the RO in a July 1996 decision, based on in-service combat experience and a diagnosis of PTSD. An initial rating of 50 percent was subsequently assigned. See January 2002 rating decision. This rating was later increased to 70 percent, effective April 16, 2004, based on evidence of worsened symptomatology. See November 2006 rating decision. The Veteran's PTSD is currently rated under Diagnostic Code (DC) 9411. During the pendency of this appeal, the rating criteria for evaluating mental disorders were amended (effective November 7, 1996). The Board is required to consider the claim in light of both the former and revised schedular rating criteria to determine whether an increased evaluation is warranted for the Veteran's PTSD. The "old" DC 9411 provided that a 50 percent rating was warranted for PTSD when the ability to establish or maintain effective or favorable relationships with people was considerably impaired and where the reliability, flexibility and efficiency levels were so reduced by reason of psychoneurotic symptoms as to result in considerable industrial impairment. A 70 percent evaluation required that the ability to establish and maintain effective or favorable relationships with people be severely impaired and that the psychoneurotic symptoms be of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. 38 C.F.R. § 4.132, DC 9411 (1996). A 100 percent evaluation required that attitudes of all contacts except the most intimate be so adversely affected as to result in virtual isolation in the community and there was totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic, and explosions of aggressive energy) associated with almost all daily activities resulting in a profound retreat from mature behavior; and that the individual was thereby demonstrably unable to obtain or retain employment. The Court has recognized that each criteria for a 100 percent rating under 38 C.F.R. § 4.132 was independent. Johnson v. Brown, 7 Vet. App. 95, 97 (1994). Under the current Diagnostic Code 9411: a 50 percent rating is warranted if the Veteran experiences 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 is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. a 100 percent rating is warranted for 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, 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 indicated that without those examples, differentiating a 30 percent evaluation from a 50 percent evaluation would be extremely ambiguous. Id at 442. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Prior to April 16, 2004 The Veteran filed his service connection claim for PTSD in February 1996. He underwent a VA examination in June 1996. He reported that after returning home from Korea, he experienced nightmares and flashbacks; but nothing of a nature that would require counseling. He complained of increased vigilance and worry regarding his security. He also reported some economic problems for which he sought financial counseling. He stated that he was married with three children, and that he had a fairly close relationship with each. He also had a very successful career in law enforcement; but he was having some difficulties with interpersonal relationships with co-workers due to his increased anxiety and tension. He also reported some marital stress. Following several diagnostic tests, the examiner diagnosed the Veteran with mild PTSD and assigned a GAF score of 85. The Board notes that a GAF score between 71-80 is reflective of transient symptoms if present at all, and expectable reactions to psychosocial stressors (e.g. difficulty concentrating after family argument); no more than slight impairment in social, occupational or school functioning. A GAF score of 81-90 reflects absent or minimal symptoms. A GAF score between 61-70 indicates 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 with some meaningful interpersonal relationships. A GAF of 51-60 indicates 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). A GAF of 41-50 indicates 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). A GAF of 31-40 indicates 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). A GAF of 21-30 indicates 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.) American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) (Fourth Edition); see 38 C.F.R. § 4.130 (2011). The Veteran underwent another VA examination in September 2001. He reported that he has been married three times. He has three daughters from his first marriage; and he stated that he still maintains a good relationship with them. He had no children from his second marriage. He got married for a third time in 1980; and he reported that the marriage is not solid. He stated that his wife is an alcoholic and that they fight often. He believes that he contributes to the discord with his irritability and inability to share his personal thoughts and experiences. He reported a limited social life in which he has a once-per-month card game and occasional fishing outings with co-workers. He has never been hospitalized for psychiatric symptoms, but he regularly attends mental health clinics. He reported that he also takes psychotropic medications. The Veteran reported symptoms that included 1-2 nightmares per week. Consequently, he would have restless sleep for 4-5 hours per night. He stated that his mind races, and that he talks in his sleep. He also reported flashbacks of combat. He described himself as hypervigilant (always looking over his shoulder). He reported having survivor's guilt. He stated that he is mistrustful of people, and particularly authority. He admitted to having a short temper. He is able to control it when he is out of the house; but does not control it so well at home. He reported that he is chronically depressed and that he has crying spells. The examiner noted that the Veteran's tendency to be mistrustful and hypervigilant causes him to be uncomfortable and wary while he performs his duties as a Security Officer of the Judicial Courts. Upon examination, the Veteran made good eye contact and was able to get his point across with clarity. He seemed to be a reliable historian. He was serious, with a rather depressed affect. There were no signs of psychomotor retardation or excitement. He was no preoccupation with homicidal or suicidal ideas. There was no indication of any psychotic process. He was not delusional; and he denied hallucinatory experiences. He was oriented to time, place, and person. Present and remote memories were good. Attention span and concentration were normal. His thinking was not concrete. His insight and judgment were not impaired. The examiner diagnosed the Veteran with chronic PTSD and assigned a GAF score of 51 (indicating moderate symptoms; but on the verge of serious symptoms). Outpatient treatment reports reflect that the Veteran was assessed with a GAF of 50 in January 2002. Despite its indication of serious symptoms, the examiner noted that the Veteran was oriented to person, place, time, and situation. His mood was dysthymic. Affect was appropriate to mood. There was no active homicidal or suicidal ideation. Thought was logical, coherent, and goal-directed. The Veteran denied hallucinations; there were no apparent delusions; and there was no psychotic paranoia. Judgment and insight were fair. The examiner noted that hypervigilance, intrusive thoughts, sleep disturbance, and impaired concentration and memory continue. Treatment reports were consistent for the next year, with GAF scores remaining at 50 in July 2002, November 2002, and January 2003. A treatment report dated April 2003 reflects a GAF score of 48. The examiner noted that it was the Veteran's first visit following recent treatment for prostate cancer. The Veteran reported dealing with survivor guilt. He stated that he was planning to retire in June. The objective examination was consistent with the 2002 examinations. A July 2003 treatment report reflects that the Veteran did retire, and that he was adjusting to the life style change. A November 2003 report reflects a GAF score of 50. The Veteran was well dressed and well groomed. He was pleasant and cooperative; and exhibited good eye-to-eye contact. His speech was coherent and relevant, with normal flow and rate. His affect was appropriate to mood: depressed. He denied suicidal and homicidal ideations. He also denied hallucinations and delusions. His memory was intact and his sensorium was clear. He was alert and oriented in all four spheres. Judgment and insight were fair. The Board notes that in order to warrant a rating in excess of 50 percent, the evidence must show that the ability to establish and maintain effective or favorable relationships with people was severely impaired and that the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment ("old" PTSD criteria); or the Veteran must experienced occupational and social impairment, with deficiencies in most area, 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 work like setting); and inability to establish and maintain effective relationships. Prior to April 16, 2004, the evidence indicates that the Veteran's PTSD was manifested by flashbacks, nightmares, disturbed sleep, hypervigilance, survivor's guilt, social isolation, intimacy issues, irritability, and difficulties with co-workers due to his anxiety, irritability, and mistrust of people and authority. January and April 2003 VA treatment records also report that the Veteran had an impaired tolerance for stress. The evidence also generally reflects that the Veteran was well-groomed and fully oriented with appropriate affect, good memory, good concentration and focus, normal speech, intact judgment, and good insight; and the records consistently note that there was no evidence of psychosis, a thought disorder, hallucination, suicidal ideation, or homicidal ideation. The evidence also indicates that the Veteran was married during this time, albeit with marital difficulties (which the records indicate are not solely due to the Veteran's PTSD symptomatology), that he maintained "fairly" close relationships with his three children and that he had a "very successful" career before retiring in July 2003. Records dating prior to the Veteran's retirement indicate that he had some friends and that he socialized with his co-workers occasionally, participating in a monthly card game and occasional fishing trip. Post-retirement records report the Veteran's history of a worsening in his marital relationship, though the Veteran remained married, and increased social isolation, though the evidence indicates that the Veteran "stayed busy" by volunteering with the Sheriff Reserve, visiting former co-workers, exercising, and doing chores around the house. See, e.g., October and November 2003 VA treatment records. Although the Veteran has reported that he had interpersonal conflicts at work that led, in part, to his retirement, (See, e.g., May 2008 hearing transcript), the evidence does not indicate that the Veteran had "severe impairment" in his ability to obtain or retain employment. Rather, the evidence indicates that the Veteran maintained employment "successfully" until retiring in July 2003 and that he maintained volunteer employment subsequent to retiring. The records also do not suggest that the Veteran was severely impaired in his ability to maintain relationships; instead, the evidence indicates that the Veteran had "fairly close" relationships with his children and social relationships with some co-workers and friends. Additionally, although the Veteran's relationship with his wife was strained, they remained married, and the evidence indicates that the marital strain was not solely due to the Veteran's PTSD symptoms. In sum, the evidence as a whole does not indicate that the Veteran's symptoms resulted in "severe" impairment of his social functioning or severe impairment in his ability to obtain or retain employment, or In regards to the "new" criteria, the Veteran's symptomatology does not approximate the criteria for a rating in excess of 50 percent. The evidence of record does not indicate that the Veteran has obsessional ritual or near-continuous panic. The treatment records generally report full orientation and negative findings and histories as to impaired speech, judgment, insight, impulse control, thought processes, hallucinations, and suicidal or homicidal ideation. The Veteran is consistently reported to be well-groomed. Although the evidence does indicate that the Veteran had an impaired tolerance for stress and problems with interpersonal relationships, the evidence indicates that the Veteran was able to maintain relationships with his children and former co-workers, that the Veteran had a successful career, and that the Veteran was able to continue volunteering with the Sheriff Reserve post-retirement. The Board finds that the evidence does not warrant a higher rating under the "old" or "new" criteria. The Board notes that the records indicate that the Veteran has some social and occupational impairment and that the record includes GAF scores that correspond to "serious" PTSD symptoms. The Board also acknowledges that the records include a diagnosis of "severe" PTSD. However, these scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). In this case, the evidence does not approximate the disability picture created by the higher rating; consequently, a higher rating must be denied. Effective April 16, 2004 Effective April 16, 2004, the Veteran's PTSD is rated at 70 percent. The "new" DC 9411 provides a 100 percent rating for 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. VA treatment records during this period generally indicate findings that the Veteran was well-groomed with full orientation, normal thought processes, normal psychomotor activity, intact concentration, normal speech, and, at most, mildly impaired memory. The records also generally report negative findings as to paranoid ideation, psychoses, and suicidal intent or plan. The records also reflect negative histories as to homicidal ideation, hallucination, and delusion (with the exception of a May 2004 VA treatment record in which the Veteran's spouse reported that Veteran had delusional thoughts). Insight and judgment are also generally reported to be intact. The Board notes that July 2004 and December 2005 VA medical records indicate that the Veteran had hobbies that promoted feelings of comfort, had a strong support system, and was cognitively, emotionally, and/or physically willing and/or able to work. The evidence indicates that the Veteran volunteered with the Sheriff Reserve until January 2005, when it became "too much for him to safely participate." See January 2005 VA treatment record. Finally, the records note that the Veteran has maintained relationships with his children and that he is still married, though somewhat estranged from his wife. An August 2005 VA treatment record reflects that the Veteran verbally abusing his caregiver, and refused to go to the hospital. This is the only reported incident of this nature, however, and the treatment record indicates that the Veteran's behavior was secondary to not taking his medication and that the situation resolved after the Veteran took his medication. The Board also notes that records indicate findings of cognitive impairment and, beginning in March 2006, a need for or supervision when doing basic activities of daily living. See March 2006 VA treatment record. A VA examination was conducted in August 2006 to determine the severity of the Veteran's PTSD. The examination report reflects that the Veteran was clean and casually dressed with unremarkable psychomotor activity, thought content, thought process, and speech. The examiner noted that the Veteran was oriented to time, place, and person. Attention was intact; there was no evidence of delusion; and the examiner reported that the Veteran understood the outcome of his behavior, had fair impulse control, was able to maintain minimum personal hygiene, and had no problem performing the activities of daily living. The Veteran denied a history of homicidal thoughts, violence/assaultiveness, and hallucinations, and the examiner stated that there was no inappropriate or obsessive/ritualistic behavior. The Veteran did report having panic attacks two to three times a week, and he stated that he had passive suicidal thoughts with no plan or intent. Additionally, remote and recent memories were mildly impaired (immediate memory was normal). The examiner diagnosed the Veteran with PTSD and opined that the Veteran did not have total occupational and social impairment due to PTSD. The examiner believed that there were some deficiencies in judgment, thinking, family relations, work, and mood, however. The Veteran underwent another examination in January 2011. The examiner reviewed the claims file in conjunction with the examination. She cited previous treatment reports, including the Veteran's May 2009 psychiatric hospitalization. She noted that the Veteran reported trouble with the recall of tasks. He also reported having trouble finding words and remembering names. He reported poor sleep, and nightmares almost every other night. He stated that three or four times per week, he has dreams about the Korean War. He wakes from these dreams distressed and alarmed. He often feels tired due to poor sleep. He admitted to being very easily set off, and arguing often with his wife. He reported that he does not trust people and generally avoids them. He was noted to be hypervigilant; and he feels a strong need to always be carrying a firearm. He reported occasional flashbacks, and recurring intrusive and distressing memories. He reported auditory and visual hallucinations in the form of the sound of a gun being cocked and creaking doors. He reported hearing these sounds two to three times per month. He admitted to a depressed mood and bouts of lethargy and amotivation. He reported feeling helpless due to his symptoms. He admitted to having suicidal ideation in the past, but not lately. He reported feelings of panic and anxiety at least once per day. These feelings are triggered by social interaction with strangers. He also tends to reach for his weapon. He reported that he often gets chest pain, shortness of breath, and the feelings of "fight or flight." He reported a persistent sense of loneliness and isolation. The Veteran reported that he and his third wife are in the process of divorcing after 30 years of marriage. He remains in contact with his three daughters and has a good relationship with all of them. He also reported being close with a brother. The Veteran stated that he used to have several friends, but he has become much more withdrawn. He believes that people are not to be trusted. He stated that he has one Veteran friend with whom he goes to the shooting range. He also enjoys flying, horse riding, and fishing. He denied any suicide attempts and history of violence or assaultiveness. Upon examination, the Veteran was casually dressed. Psychomotor activity was unremarkable. Speech was spontaneous; affect was normal; mood was dysphoric. He was cooperative with the examiner. He was oriented as to person, place, and time. His thought process was unremarkable. Thought content reflected preoccupation with one or two topics, and paranoid ideation. There were no delusions. He understood the outcome of his behavior, and that he has a problem. The examiner noted that the Veteran's behavior was appropriate. The Veteran reported obsessive and ritualistic behavior in the form of repeatedly checking locks. He reported panic attacks approximately one time per day. He described the severity of the attacks as moderate; and stated that he is able to get through them. However, he stated that he avoids social interactions, as these tend to be triggers for panic attacks. The Veteran has had no episodes of violence; and he understands the outcome of his behavior. He has the ability to maintain minimum personal hygiene. His disability does not affect his ability to groom himself, feed himself, bathe himself, dress and undress himself, drive, and use the toilet. The disability has a moderate affect on his ability to perform household chores, shop, engage in sports or exercise, and engage in other recreational activities. It has a severe impact on his ability to travel. The Veteran's remote and immediate memory was normal. His recent memory was mildly impaired. The Veteran stated that he retired in 2003. He listed the cause of retirement as a physical problem (specifically, pain and his legs and knees). The examiner diagnosed the Veteran with PTSD, chronic and severe; and major depressive disorder, recurrent, moderate. The examiner noted that the Veteran's depression seemed to be related to his PTSD and his quality of life. She stated that there was not total occupational and social impairment due to PTSD signs and symptoms. She noted that PTSD signs and symptoms result in deficiencies in the following areas: judgment, thinking, family relations, work, and mood or school. In April 2011, the January 2011 examiner submitted an addendum. She reiterated that the Veteran's PTSD was manifested by recurrent and distressing recollections of the trauma, including images, thoughts and perceptions; recurrent distressing dreams of the event; acting or feeling as if the traumatic event were recurring; intense psychological distress at exposure to internal or external cues; and physiological reactivity on exposure to internal or external cues. She acknowledged that the PTSD is manifested by persistent avoidance of stimuli associated with the trauma. The Veteran avoids thoughts, feelings, and conversations associated with the trauma; and he makes an effort to avoid activities, places, and people that arouse recollections of the trauma. He has markedly diminished interest in significant activities. He feels detachment and estrangement from others. He has a restricted range of affect, and a sense foreshortened future. He displays persistent symptoms of increased arousal in the form of difficulty falling and staying asleep; irritability or outbursts of anger; difficulty concentrating; and hypervigilance. She stated that the Veteran experiences depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic speech impairment, and mild memory loss (such as forgetting names, directions, more recent events). The Veteran had circumstantial, circumlocutory, or stereotyped speech; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. He did not have a flattened affect; panic attacks more than once per week; difficulty in understanding complex commands; impairment of short and long-term memory; impaired judgment; or impaired abstract thinking. The Veteran had difficulty in adapting to stressful circumstances, including work or a work-like setting. He did not have suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscured, 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 the violence; spatial disorientation; neglect of personal appearance and hygiene; or inability to establish and maintain effective relationships. He did not have gross impairment in thought processes or communication; persistent delusion 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; or memory loss for names of close relatives, own occupation, or own name. The examiner reiterated her opinion that the Veteran's PTSD is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. She once again stated that the PTSD was not manifested by total occupational and social impairment. With regards to the issue of whether the Veteran's memory loss is a symptom of PTSD or a symptom of non-service connected dementia. The January 2011 examiner, in her April 2011 addendum, reiterated that as a psychiatrist, she is unable to make that determination. She did reiterate that memory loss (other than loss of memory for the specific trauma) is not typically a symptom of PTSD. Nevertheless, in the absence of a determination that the mild, recent, memory loss is "less likely than not" related to the PTSD, the Board will give the Veteran the benefit of the doubt and conclude that this symptom is secondary to PTSD. The Board notes, however, that this does not have an impact on the Veteran's disability rating at this time. His memory loss has been restricted to recent events (with immediate and remote memory being normal) and his memory loss has been characterized as mild. The Board notes that even assuming that the mild memory loss is a symptom of PTSD, the evidence of record does not indicate that the Veteran's PTSD results in total impairment. The records contain no findings of total impairment and the reported symptoms do not approximate the disability picture created by the higher rating. There is no evidence of gross impairment in thought processes or speech, total isolation, loss of contact with reality, or grossly inappropriate behavior, or that he poses a persistent risk of hurting himself or others. Additionally, the Board notes that the reported GAF scores, which range from 30 to 60 with the majority in the 40s, indicate findings of less than total impairment. Although the evidence includes some findings/histories of delusions and hallucinations, the preponderance of the evidence is against a finding that these hallucinations and delusions are "persistent." Moreover, this is but one symptom that may be manifested by someone who has total occupational and social impairment. This is superseded by the fact that the Veteran's examiners have consistently and unequivocally stated that the Veteran does not exhibit total occupational or social impairment. With regards to the "old" rating criteria, the Veteran's PTSD has not caused attitudes of all contacts except the most intimate be so adversely affected as to result in virtual isolation in the community; there have not been totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic, and explosions of aggressive energy) associated with almost all daily activities resulting in a profound retreat from mature behavior; and the individual has not thereby demonstrably unable to obtain or retain employment. Though the Veteran reported that he was in the process of divorcing, he stated that he remains in contact with his three daughters and that he has a good relationship with all of them. He also reported being close with a brother. He reported that he still has one friend with whom he goes to the shooting range. As noted above, the preponderance of the evidence is against a finding of totally incapacitating psychoneurotic symptoms; and the VA examiners have consistently and unequivocally stated that the Veteran does not exhibit total occupational (or social) impairment. Based on the foregoing, the Board finds that the disability pictures contemplated by the 100 ratings are not met; consequently, a higher rating is not warranted. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). However, as discussed above, the evidentiary record in this case persuasively shows that the Veteran's symptoms squarely match the type and degree of the examples set forth under the criteria for the current 50 and 70 percent schedular ratings. Consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is not appropriate in such a case where the rating criteria reasonably describe the Veteran's disability level and symptomatology. See generally Thun v. Peak, 22 Vet.App. 111 (2008). The Board therefore finds that referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted in this case. Headaches The Board notes that effective October 23, 2008, VA amended the Schedule for Rating Disabilities by revising the portion of the Schedule that addresses neurological conditions and convulsive disorders to provide updated criteria for evaluating residuals of TBI. The amendment applies to all applications for benefits received by VA on or after October 23, 2008. 73 Fed. Reg. 54693 (Sept. 23, 2008) ("The amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. The old criteria will apply to applications received by VA before that date."). The Veteran filed his claim for benefits in February 1996. Consequently, the new criteria are not applicable. For historical purposes, it is noted that service connection was established for concussion with headaches by the RO in a July 1996 decision, based on evidence of in-service exposure to an explosion, the Veteran's history of concussion, and corroborative lay statements. A 10 percent disability evaluation was assigned under DC 8045-9304 for residuals of head trauma. The Board notes that subsequent records reflect the Veteran's negative history as to concussion. Although the July 1996 rating decision specified the service connected disability as "concussion with headaches," the evidence indicates that service connection was truly established for headaches as secondary to the head trauma sustained from his proximity to a mortar explosion. Consequently, the existence (or nonexistence) of a concussion does not affect the classification of the issue under DC 8045-9304. Under DC 8045-9304, a 10 percent rating is warranted for purely subjective complaints following trauma, such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma, and ratings in excess of 10 percent for brain disease due to trauma under DC 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. Purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc. resulting from brain trauma are rated under the diagnostic codes specifically dealing with such disabilities. 38 C.F.R. § 4.124a, DC 8045. Pursuant to DC 8100, a maximum rating of 50 percent is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic adaptability. A rating if 30 percent is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. A rating if 10 percent is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. A noncompensable rating is warranted for less frequent attacks. A March 1996 VA treatment record reflects the Veteran's history of occasional headaches. A June 1996 VA examination record shows the Veteran's history of headaches since discharge from service. The Veteran indicated that the headaches started at the back of the neck and radiated to the front and occurred mostly during stress. A September 2001 VA examination record reflects the Veteran's history of headaches that were "holocephalic, but more concentrated bi-frontally." The Veteran indicated that the headaches seemed to be precipitated by either nightmares, stress at work, or emotional upsetting. They varied in length from as short as two hours to as long as three days. The Veteran also estimated that no more than seven to ten days passed between headache episodes. The Veteran denied any associated visual symptomatology or vomiting, though he stated that they "maybe [were] associated with nausea." Examination indicated normal mental status and normal cranial nerve functioning. The examiner diagnosed the Veteran with chronic tension headaches without disorder of pericranial muscles. A February 2005 VA treatment record reflects a history that the Veteran's headaches "have returned." The Veteran reported that they were "real bad ones," that started in the front. A July 2005 VA treatment record reflects the Veteran's history of a "slight headache." An April 2006 VA treatment record reflects the Veteran's history of having headaches at night, which were helped by Tylenol. An August 2006 VA examination record reflects the Veteran's history of headaches at the bilateral retro orbital areas, frontal, bilatemporal, and occipital, with an approximate severity of 8/10. The Veteran stated that he got headaches when he got tense, was under stress, or had nightmares, and that light bothered him. He reported that he had headaches on a weekly basis and that most attacks were prostrating and lasted for hours. Examination was normal, and the examiner noted that the headaches were not migraines. A computerized tomography (CT) scan indicated mild chronic small-vessel ischemic disease with no acute intracranial pathology. The examiner opined that the headaches had a severe effect on exercise and sports, a moderate effect on recreation, a mild effect on chores and shopping, and no effect on feeding, bathing, dressing, toileting, and grooming. A January 2011 VA examination report reflects that the Veteran reported headaches occurring approximately every other day. He reported that they last for half the day. When experiencing one of these headaches, he is unable to maintain personal hygiene, get out of bed, or eat. He reported that he retired in 2003 due to these headaches, back pain, leg pain, and depression. Headaches are associated with nausea, dizziness, and ataxia. He treats the headaches with 2 extra strength Tylenol every day; and he reported that his response to treatment is good. However, he also reported that he has weekly, mostly prostrating attacks that last for hours. The examiner diagnosed the Veteran with post concussion headaches and tension headaches that prevent him performing activities of daily living. A June 2011 VA examination report reflects similar findings and complaints. The Veteran described the headaches as starting over the bifrontal region, radiating to the back of his head, associated with nausea and photophobia (but not all of the time). He generally denied vomiting and other symptoms of focal weakness, numbness, disorientation, confusion, seizures or falls. This time the Veteran reported taking two extra strength Tylenol four to five times per day. He denied ever having been on prescription medication. He reported headaches occurring almost daily, and ranging in severity from mild to severe. The Board finds that in order to warrant a rating in excess of 10 percent, the Veteran's headaches must be manifested by characteristic prostrating attacks occurring on an average of once per month over the last several months. The Board notes that prior to the August 2006 examination, there is no objective evidence that the Veteran suffered from monthly prostrating headaches. Moreover, the Veteran's disability does not warrant a higher evaluation under DCs 8045-9304. Although the records indicate the Veteran has been diagnosed with dementia, the diagnosis has been characterized as Alzheimer's rather than multi-infarct dementia; there is no competent evidence of multi-infarct dementia. As stated above, a higher rating is only available under DC 8045 if there is evidence of multi infarct dementia; consequently, an increased rating under DC 8045 must be denied However, effective August 26, 2006, the Veteran began to report headaches on a weekly basis, most of which constituted prostrating attacks. He also reported that he had to quit his job, in part, due to his headaches. The Board finds, in granting the benefit of the doubt to the Veteran, that a 30 percent rating is warranted effective August 26, 2006. The Board notes that a rating in excess of 30 percent is not warranted because the preponderance of the evidence does not reflect that the Veteran's headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic adaptability. Although the Veteran reported that he is no longer unemployed (since 2003), the evidence reflects that his inability to work was largely due to disabilities other than his migraine headaches. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). However, as discussed above, the evidentiary record in this case persuasively shows that the Veteran's symptoms squarely match the type and degree of the examples set forth under the criteria for the current 10 and 30 percent schedular ratings. Consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is not appropriate in such a case where the rating criteria reasonably describe the Veteran's disability level and symptomatology. See generally Thun v. Peak, 22 Vet.App. 111 (2008). The Board therefore finds that referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER Increased ratings for the Veteran's PTSD are not warranted. Prior to August 26, 2006, a rating in excess of 10 percent for post-concussion headaches is not warranted. To this extent, the appeal is denied. Effective August 26, 2006, a rating of 30 percent, but no greater is warranted. To this extent, the appeal is granted. REMAND As noted in the introduction, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part and parcel of an increased-rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability was raised by the record. Specifically, it was raised when the Veteran stated that he was retiring due to pain in his legs (a service connected disability) and knees. Since the RO only granted a TDIU effective December 4, 2007, the Board is assuming jurisdiction over the issue of whether a TDIU is warranted prior to December 4, 2007. It is undisputed that the Veteran retired on July 1, 2003. Generally, a Veteran will be entitled to a TDIU upon establishing he is in fact unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Consideration may be given to his level of education, any special training, and previous work experience in making this determination, but not to his age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities - provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). When the percentage standards of 38 C.F.R. § 4.16(a) have not been met, VA must consider assigning an extra-schedular rating. 38 C.F.R. § 4.16(b). If the evidence demonstrates that the Veteran is unemployable by reason of his service- connected disabilities, but fails to meet these percentage standards (as appears to be the case here), the claim shall be submitted to the Director of Compensation and Pension (C&P) Service for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board notes that the treatment records from July 1, 2003 to December 4, 2007 do not contain an explicit opinion as to whether the Veteran's unemployment was attributable to his service connected disabilities or whether these disabilities would preclude all gainful employment. Consequently, the Board finds that a VA opinion is necessary for the Board to decide the claim. Finally, the Veteran's claim for entitlement to a TDIU is dependent on whether the Veteran's service connected disabilities render him unable to secure or follow a substantially gainful occupation. The "old" PTSD rating criteria allow for a 100 percent rating to be granted if the Veteran is demonstrably unable to obtain or retain employment. Given that the similarities between the "old" PTSD rating criteria and the criteria for entitlement to a TDIU, the Board finds that the issue of entitlement to a TDIU is inextricably intertwined with the issue of whether an increased rating is warranted for the Veteran's service connected PTSD. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. The RO should send the claims file to a VA examiner for the purpose of determining whether it was as likely as not that (prior to December 4, 2007) the Veteran's service connected disabilities prevented the Veteran from obtaining or retaining gainful employment that his education and occupational experience would otherwise permit him to undertake. The examiner should review the claims folders and note such review in the report or in an addendum. The examiner should provide a rationale for the opinion. 2. After completing the above, and any other development deemed necessary, the AMC/RO should readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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. 2010). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs