Citation Nr: 1228167 Decision Date: 08/15/12 Archive Date: 08/21/12 DOCKET NO. 05-36 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD), prior to June 22, 2009. 2. Entitlement to an initial disability rating in excess of 30 percent for ischemic heart disease. 3. Entitlement to service connection for sleep apnea. 4. Entitlement to service connection for the residuals of a closed head injury. 5. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Robert P. Walsh, Esq. WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD K. A. Kennerly, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). Procedural History In June 2003, the Veteran filed claims of entitlement to service connection for: PTSD; cysts secondary to Agent Orange exposure; chronic low back pain; tinnitus; and bilateral hearing loss. A January 2004 rating decision denied entitlement to all of the aforementioned claims. A March 2004 rating decision confirmed and continued the prior denial of PTSD. In August 2004, however, the RO granted the Veteran's claim for PTSD and assigned a 10 percent disability rating, effective June 6, 2003, the date of the claim. The Veteran submitted a notice of disagreement (NOD) with the assignment of 10 percent for PTSD in September 2005, and timely perfected his appeal in November 2005. In September 2004, the Veteran filed claims of entitlement to service connection for malaria and hypertension. The Veteran also petitioned to reopen his previously denied claim of entitlement to service connection for cysts secondary to Agent Orange exposure. A June 2006 rating decision denied the Veteran's claims. The Veteran submitted a NOD with this determination in July 2006, and timely perfected his appeal in January 2007. In December 2006 and January 2007, the Veteran filed claims of entitlement to service connection for closed head injury residuals and petitioned the RO to reopen his previously denied claims of entitlement to service connection for bilateral hearing loss and tinnitus. An April 2008 rating decision denied all of the Veteran's claims. The Veteran submitted a NOD with this determination in June 2008, and timely perfected his appeal in October 2008. In January 2009 and June 2009, the Veteran filed claims of entitlement to service connection for sleep apnea, cervical spine disorder, headaches, and diabetes mellitus, Type II. The Veteran also petitioned to reopen his previously denied claim of entitlement to service connection for chronic low back pain. A February 2009 rating decision granted entitlement to service connection for diabetes mellitus, Type II, assigning a 20 percent disability rating, and denied the remaining claims. In May 2009, the Veteran submitted a NOD with the denial of his claim of entitlement to service connection for sleep apnea as well as the assigned 20 percent disability rating for diabetes mellitus, Type II. In July 2009, the Veteran submitted a NOD with the denial of his claims of entitlement to service connection for low back pain, a cervical spine disorder, and headaches. In September 2009, the Veteran perfected his appeal with respect to the issues of entitlement to service connection for sleep apnea and entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, Type II. The Veteran failed to perfect his appeal with respect to the issues of entitlement to service connection for a cervical spine disorder, headaches, and a low back disorder. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a NOD initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. An August 2009 rating decision increased the Veteran's disability rating for PTSD, from 50 percent to 100 percent disabling, effective from June 22, 2009. As the 100 percent disability rating does not encompass the entire appeal period, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 39 (1993). In August 2010, the Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ), sitting in Detroit, Michigan. A transcript of that proceeding has been prepared and incorporated into the evidence of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the VLJ/Decision Review Officer who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the AVLJ fully explained the issues on appeal during the hearing and specifically discussed the basis of the prior determination, the elements of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims. Significantly, neither the Veteran nor his counsel has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). In April 2011, the following claims came before the Board: the Veteran's petition to reopen his previously denied claims of entitlement to service connection for (1) cysts secondary to Agent Orange exposure, (2) bilateral hearing loss, and (3) tinnitus; entitlement to service connection for (4) malaria, (5) sleep apnea, (6) the residuals of a closed head injury, and (7) hypertension; as well as entitlement to increased initial disability ratings for (8) PTSD and (9) diabetes mellitus, Type II. At that time, the Board reopened and granted the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus, remanded the claim of entitlement to service connection for the residuals of a closed head injury, and denied the remaining claims. The Veteran subsequently submitted a notice of appeal to the Court, indicating his disagreement with the denial of his claims of entitlement to service connection for sleep apnea and entitlement to a higher initial disability rating for PTSD, prior to June 22, 2009. The Court issued a January 2012 Order vacating, in part, the April 2011 Board decision and remanding the appeal for readjudication consistent with the parties' Joint Motion for Remand (JMR). Employability Despite the fact that the April 2011 Board decision referred back the issue of entitlement to TDIU, it is clear that no further development has been performed with respect to this claim. The Board is aware of the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), which found that every claim for a higher evaluation includes a claim for a TDIU where the Veteran claims that his service-connected disabilities prevent him from working. As the Veteran in this case has been deemed to be 100 percent disabled due to his PTSD, it is clear that he maintains he is unemployable. Accordingly, the Board has assumed jurisdiction of the issue of entitlement to TDIU. Remanded Issues The issues of entitlement to an initial disability rating in excess of 30 percent for ischemic heart disease, entitlement to service connection for sleep apnea and the residuals of a closed head injury, as well as entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO. The Veteran will be notified if any further action on his part is required. (CONTINUED ON NEXT PAGE) FINDINGS OF FACT 1. Prior to June 22, 2009, the Veteran's PTSD was manifested by sleep impairment, periodic intrusive thoughts/flashbacks, nightmares, some irritability, hyperarousal, and some inability to establish and maintain effective work and social relationships. 2. At no time prior to June 22, 2009, did the Veteran demonstrate symptoms like: obsessional rituals that interfered with routine actives; illogical, obscure or irrelevant speech; near-continuous panic or depression affecting his ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; any impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting himself or others; the intermittent inability to perform activities of daily living; or disorientation to time or place. 3. The evidence of record does not demonstrate that prior to June 22, 2009, the Veteran's service-connected PTSD was so exceptional or unusual that referral for extraschedular consideration by designated authority was required. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of the currently assigned 50 percent for PTSD, prior to June 22, 2009, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2011). 2. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2011). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The instant claim arises from a granted claim of service connection. The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a) (West 2002). Compliance with the first Pelegrini II element requires notice of these five elements in initial ratings cases. See Dunlop v. Nicholson, 21 Vet. App. 112 (2006). Prior to and following the initial adjudication of the Veteran's service connection claim for PTSD, letters dated in July 2003, March 2004, May 2004, and August 2004, fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187. Thereafter, in March 2006, the Veteran was provided with notice of the manner in which VA assigns initial ratings and effective dates, consistent with the holding in Dingess/Hartman. Notice letters dated in September 2006 and September 2008 subsequently informed the Veteran of that which was necessary to establish a claim of entitlement to an increased disability rating. Although these letters were not sent prior to the initial adjudication of the Veteran's claim, this was not prejudicial to him, since he was subsequently provided adequate notice, he was provided ample time to respond with additional argument and evidence, the claim was readjudicated and supplemental statements of the case were provided to the Veteran in October 2006, January 2007, July 2008, November 2008, February 2009, May 2009, and August 2009. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Board is aware of the Court's decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) [holding that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life]. However, relying on the informal guidance from the VA Office of the General Counsel and a VA Fast Letter issued in June 2008 (Fast Letter 08-16; June 2, 2008), the Board finds that the Vazquez-Flores decision does not apply to the present case. According to VA's Office of the General Counsel, because this matter concerns an appeal from an initial rating decision, VCAA notice obligations are fully satisfied once service connection has been granted. Any further notice and assistance requirements are covered by 38 U.S.C. §§ 5104(a), 7105(d)(1), and 5103A as part of the appeals process, upon the filing of a timely notice of disagreement with respect to the initial rating or effective date assigned following the grant of service connection. Despite this, the Veteran was provided with a Vazquez-Flores compliant notice letter in September 2008. The Veteran has not alleged that he received inadequate VCAA notice. See Goodwin v. Peake, 22 Vet. App. 128 (2008), [holding as to the notice requirements for downstream earlier effective date claims following the grant of service connection: "that where a claim has been substantiated after the enactment of the VCAA, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements"]. As there is no indication that there exists any evidence that could be obtained to affect the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice is not required where there is no reasonable possibility that additional development will aid the Veteran]. The Board also concludes VA's duty to assist has been satisfied. VA treatment records and private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of a Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of a Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011). The Veteran was provided with appropriate VA PTSD examinations in August 2004, October 2008, and June 2009. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. See 38 C.F.R. § 3.327(a) (2011). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The aforementioned VA examination reports are thorough and supported by outpatient treatment records. The examinations in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. II. The Merits of the Claim The Veteran seeks an initial disability rating in excess of 50 percent, prior to June 22, 2009, for his service-connected PTSD. He contends that his currently assigned disability rating does not adequately reflect the severity of his disorder. Governing Law and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2011). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2011). 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. See 38 C.F.R. § 4.7 (2011). In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Compare Francisco v. Brown, 7 Vet. App. 55, 58 (1994) [where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern]. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. The Veteran's psychiatric disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 [PTSD]. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Diagnostic Code 9411 is deemed by the Board to be the most appropriate primarily because it pertains specifically to the diagnosed disability in the Veteran's case (PTSD). In any event, with the exception of eating disorders, all mental disorders, including PTSD, are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. The Veteran has not requested that another diagnostic code should be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9411. Schedular Criteria PTSD is to be rated under the general rating formula for mental disorders under 38 C.F.R. § 4.130. The pertinent provisions of 38 C.F.R. § 4.130 relating to rating psychiatric disabilities read as follows: A 100 percent disability rating requires: 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. A 70 percent disability rating requires: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression 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 50 percent disability rating requires: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2011). Global Assessment of Functioning In rating the severity of the Veteran's service-connected psychiatric disability under the examples listed above, the Board is aware of the fact that psychiatric health care providers have their own system for rating psychiatric disability. This is the Global Assessment of Functioning (GAF) rating scale, which reflects psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM- IV); Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. An examiner's classification of the level of psychiatric impairment, by words or by a score, is to be considered but is not determinative of the percentage rating to be assigned. See VAOPGCPREC 10-95. A GAF score, however, is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). Analysis The Veteran was granted service connection and awarded an initial 10 percent disability rating by the August 2004 rating decision, effective June 6, 2003. A September 2005 rating decision then granted the Veteran a 50 percent disability rating, effective June 6, 2003. An August 2009 rating decision later granted the Veteran a 100 percent disability rating effective June 22, 2009. The Veteran contends that he is entitled to a disability rating in excess of 50 percent, prior to June 22, 2009. After a careful review of the Veteran's claims file, the Board finds that the preponderance of the evidence does not support an evaluation higher than 50 percent, prior to June 22, 2009. In August 2003, the Veteran participated in a private psychosocial assessment. At the time of the examination, the Veteran was employed by S.S. since June 1999. He reported that he essentially worked by himself and had minimal interaction with others. The Veteran informed the examiner that he had difficulty falling asleep and staying asleep. He had waves of nightmares with no set pattern, but often woke up sweating with his heart racing. He noted becoming extremely upset around places, people and events that reminded him of the military, and thus avoided them. He denied flashbacks, but indicated that loud noises, the smell of fish frying, and the smell of rice triggered extreme intrusive thoughts regarding his Vietnam experience. The Veteran stated that he had felt emotionally numb and void of feeling since his return from the military. He had difficulty trusting others, no close friends, and rocky interpersonal relationships. He avoided thinking or talking about his traumas and had not sought treatment at the time of the examination. The VA examiner noted that the Veteran had difficulty concentrating, was easily distracted, and had difficulty completing tasks in a timely fashion. He was hypervigilant and exhibited an exaggerated startle response. He also tended to be very irritable with outbursts of anger not usually related to the issues at hand. His GAF score was 48. See Private Treatment Record, E.M.T., Ph.D., CRC, August 19, 2003. The Veteran was afforded a VA PTSD examination in August 2004. At that time, the Veteran complained of numbness and severe sleep disturbance. Upon mental status examination, he was noted to be alert and oriented to all spheres. Mood and affect were somewhat restricted. He was not suicidal and did not endorse homicidal ideation. He complained of intrusive thoughts of an in-service incident, at which time he was blown from his Jeep due to a land mine. He did not experience hallucinations or delusions. His memory was intact. He stated that he had trouble feeling close to others and had a short attention span. The VA examiner noted that his concentration did seem to wander, but he then asked vague circumstantial questions. No diagnostic or clinical testing was performed. The VA examiner opined that the Veteran suffered from numbness, withdrawal and sleep disturbance. His capacity for improvement was considered fair to good, and the VA examiner stated that he could be helped if he considered getting treatment. His GAF score was 63. See VA PTSD Examination Report, August 19, 2004. In July 2008, the Veteran participated in a private psychosocial assessment. It was noted that the Veteran last worked at S.S. in 2007. The examiner noted that the Veteran's symptoms remained basically the same since his August 2003 evaluation. He continued to complain of waves of nightmares with no set pattern. He often woke up sweating with his heart racing. He had daily intermittent intrusive and involuntary thoughts regarding his military experience. He became extremely upset around places, people and events that reminded him of the military and attempted to avoid them. He denied flashbacks but indicated that loud noises, the smell of fish frying, and the smell of rice triggered extreme intrusive thoughts regarding his Vietnam experiences. The Veteran stated that he continued to feel emotionally numb and void of feelings. He had difficulty trusting others, no close friends, and rocky interpersonal relationships. He avoided thinking or talking about his traumas. The VA examiner noted that the Veteran had difficulty concentrating, was easily distracted, and had difficulty completing tasks in a timely fashion. He was hypervigilant and exhibited an exaggerated startle response. He also tended to be very irritable with outbursts of anger not usually related to the issues at hand. His GAF score was 45. See Private Treatment Record, E.M.T., Ph.D., CRC, July 2, 2008. In October 2008, the Veteran was afforded a second PTSD examination. It was noted that for the prior year, the Veteran complained of poor sleep, an increase in anxiety, as well as flashbacks, nightmares, and panic attacks. As to the frequency of his flashbacks, the Veteran noted that these occur at least once per week and that he experienced nightmares four to five times per week. The Veteran stated that he avoided being outside his home for shopping or for any other reason. He noted that he was retired from his employment. With respect to his family, the Veteran noted that he had been married for 38 years and had three children. He described his relationship with his children to be good, except that one daughter was living with him with her child and he did not get along with his son. He described his relationship with his wife to be okay with an occasional disturbance by him being angry or frustrated. He denied physical aggression or assault toward his wife or toward others. The Veteran endorsed having a short temper and the inability to tolerate other people. He especially mentioned people from his neighborhood and from other races, but again denied having active physical aggression to any of his neighbors or other people, but he did verbalize consistent anger and frustration. See VA PTSD Examination Report, October 9, 2008. Upon mental status examination, the Veteran was casually dressed with good grooming and hygiene and maintained good eye contact. His psychomotor activity was within normal limits with occasional agitation. His attitude toward the VA examiner was friendly and cooperative. His speech was normal and coherent. His mood was frustrated and his affect was labile. His thought process was goal directed with occasional circumstantial thought process, but he appeared to be redirectable. He denied suicidal or homicidal ideation, intent or impulse. He denied visual hallucinations and endorsed occasional, vague auditory hallucinations such as noise or sometimes thing that his wife was calling him, when she was not. He also appeared to have paranoid delusions by thinking other people were after him or out to get him. His GAF score was between 55 and 60. Id. In November 2008, the Veteran participated in a private psychosocial assessment. It was again noted that the Veteran last worked at S.S. in 2007. The examiner noted that the Veteran's symptoms remained basically the same since his July 2008 evaluation. He continued to complain of waves of nightmares with no set pattern. He often woke up sweating with his heart racing. He had daily intermittent intrusive and involuntary thoughts regarding his military experience. He became extremely upset around places, people and events that reminded him of the military and attempted to avoid them. He denied flashbacks but indicated that loud noises, the smell of fish frying, and the smell of rice triggered extreme intrusive thoughts regarding his Vietnam experiences. The Veteran stated that he felt emotionally numb and void of feelings. He had difficulty trusting others, no close friends, and rocky interpersonal relationships. He avoided thinking or talking about his traumas. The VA examiner noted that the Veteran had difficulty concentrating, was easily distracted, and had difficulty completing tasks in a timely fashion. He was hypervigilant and exhibited an exaggerated startle response. He also tended to be very irritable with outbursts of anger not usually related to the issues at hand. His GAF score was 43. See Private Treatment Record, E.M.T., Ph.D., CRC, November 18, 2008. The Veteran was afforded a third VA PTSD examination in June 2009. At that time, it was noted that the Veteran was enrolled in the PTSD program at the Battle Creek VA Medical Center. He was also taking medication. He denied any hospitalizations in the prior year. He reported some improvement due to PTSD therapy and treatment. He continued to complain of sleep disturbance and feelings of isolation. He also endorsed irritability and avoidance of crowds. Upon mental status examination, the Veteran was fairly well groomed and his speech was slow and contemplative. His mood and affect were flat. He did not have any suicidal or homicidal ideation. He stated that he sometimes felt passively suicidal, but he never thought about doing anything to himself. He reported that sometimes he saw shadows and ghosts, and periodically heard someone calling his name. There were no commanding auditory hallucinations and he did not appear to have any delusional thoughts. He was oriented in all spheres. The Veteran noted that his short-term memory had been getting worse and he had periodic difficulty finding words. He had a very short attention span and was easily distracted. His judgment was fair and he was aware of the outcome of his behavior. His intelligence appeared to be below average. He had fair insight into his disability. He had difficulty sleeping with periodic nightmares. He had some inappropriate behavior (i.e. shopping at Wal Mart at 3:00AM and sleeping during the day.) He also reported getting anxious, but did not report any history of a panic disorder. Impulse control was limited. The Veteran had problems with his daily activities due to flashbacks. He reported having no relationship with his wife and a difficult relationship with his daughter. He stated that he always wanted to be alone. See VA PTSD Examination Report, June 22, 2009. The VA examiner stated that the Veteran was not able to work full-time due to his PTSD symptoms, and his medical condition. Though the Veteran's PTSD symptoms had been improving since he began medical treatment, he was still experiencing symptoms. His GAF score was 50/52. With respect to the changes in the functional status and quality of his life, the VA examiner concluded that the Veteran was not able to hold any position. He reported intolerance of all people. He was very isolative, separated from his family, had no relationship with his wife or children, and stated he wanted to move out of the family home. He had difficulty socializing with anyone due to his paranoia, irritability, and anger. He avoided crowds and reported flashbacks of being shot at in his dreams. He also reported seeing ghosts and dead people, hypervigilance, poor sleep, difficulty concentrating, and difficulty with his memory. Id. As noted above, in order for the Veteran to obtain the next higher disability rating, 70 percent, he must demonstrate significant occupational and social impairment, with deficiencies in most areas. Examples of this impairment include: suicidal ideation; obsessional rituals which interfere with routine activities; irrelevant, obscure, or illogical speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2011). To address these examples first, the Board notes that at no time prior to his June 22, 2009 VA examination, did the Veteran endorse suicidal ideation. See Private Treatment Records, E.M.T., Ph.D., CRC, August 19, 2003, July 2, 2008, and November 18, 2008; and VA PTSD Examination Reports, August 19, 2004, October 9, 2008, and June 22, 2009. The remainder of the Veteran's treatment records is pertinently negative for any suicidal ideation. The evidence of record is completely devoid of any references to the Veteran participating in obsessional rituals that interfered with his routine activities or that he experienced any spatial disorientation. Each of the mental status examinations performed in conjunction with the VA examinations in 2004, 2008, and 2009, found the Veteran to be oriented in all spheres with normal speech, personal appearance and hygiene. The Veteran did not complain of depression that affected his ability to function independently, although he did indicate he suffered from periodic panic attacks during his October 2008 VA examination. He had no impairment of thought but did endorse hypervigilance and an exaggerated startle response. See Private Treatment Records, E.M.T., Ph.D., CRC, August 19, 2003, July 2, 2008, and November 18, 2008; and VA PTSD Examination Reports, August 19, 2004 and October 9, 2008. In August 2003, July 2008, and November 2008, the Veteran reported that he tended to be very irritable with outbursts of anger not usually related to the issues at hand. See Private Treatment Records, E.M.T., Ph.D., CRC, August 19, 2003, July 2, 2008, and November 18, 2008. In October 2008, the Veteran noted that his relationship with his wife was okay, with an occasional disturbance by him being angry or frustrated. He also endorsed anger and frustration with people from his neighborhood. However, he denied any physical aggression or assault toward his wife or toward others. See VA PTSD Examination Report, October 9, 2008. As such, there is no indication that the Veteran suffered from impaired impulse control. Rather, he was aware of his anger and frustration and took appropriate steps to avoid confrontation. It is clear, however, that the Veteran had significant difficulty adapting to stressful circumstances at work. In August 2003, though the Veteran was still employed at that time, he reported that he essentially worked by himself and had minimal interaction with others. See Private Treatment Record, E.M.T., Ph.D., CRC, August 19, 2003. The record appears to indicate that the Veteran remained employed until 2007, at which time he retired. It is unclear whether this was due to his age or due to his PTSD symptomatology. Regardless, the evidence certainly supports a finding that the Veteran had difficulty adapting to work or a work-like setting. With respect to personal relationships, the Veteran consistently maintained that he felt emotionally numb and void of feeling his return from Vietnam. In August 2003, July 2008, and November 2008, he stated that he had difficulty trusting others, had no close friends, and had rocky interpersonal relationships. See Private Treatment Records, E.M.T., Ph.D., CRC, August 19, 2003, July 2, 2008, and November 18, 2008. During his October 2008 VA examination, the Veteran reported that he had been married for 38 years and had three children. He described his relationship with his children to be good, except that one daughter was living with him with her child and that he did not get along with his son. He described his relationship with his wife to be okay, with occasional disturbance. See VA PTSD Examination Report, October 9, 2008. The Board is aware that its inquiry is not strictly limited to the criteria found in the VA rating schedule. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) [the criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating]. In reviewing the totality of the evidence, the Board does not find that the Veteran's PTSD symptomatology, prior to June 22, 2009, satisfies the criteria for a higher disability rating. He demonstrated good judgment in thinking, particularly in managing his intermittent frustrations. He did not demonstrate suicidal or homicidal ideation, his speech was logical and goal-directed and he did not have impaired impulse control. He periodically became irritable during an argument, but never became violent. The Veteran did not neglect his appearance or hygiene and had no spatial disorientation. The Veteran did demonstrate occupational and social impairment. He was generally able to function satisfactorily with his solitary employment, routine behavior, self-care, and conversation. He did not have difficulty recalling names, directions, or recent events, as evidenced by the results on the three VA PTSD examinations. He did, however, endorse having anxiety, chronic sleep impairment, isolative behavior, and some mild memory loss. As such, the Board finds that the Veteran has demonstrated the ability to establish and maintain effective familial relationships, as noted above, but that he had significant difficulty maintaining social and work relationships. The Board additionally observes that the assigned GAF scores are reflective of a wide range of symptomatology. The Veteran's private treatment records revealed GAF scores of 48, 45, and 43. See Private Treatment Records, E.M.T., Ph.D., CRC, August 19, 2003, July 2, 2008, and November 18, 2008 (respectively). VA examination reports noted GAF scores of 63 and between 55 and 60. See VA PTSD Examination Reports, August 19, 2004, and October 9, 2008 (respectively). A GAF score of 41 to 50 shows "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Scores ranging from 51 to 60 reflect more 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). GAF scores ranging between 61 to 70 reflect 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, and has some meaningful interpersonal relationships. The Veteran has not demonstrated any of the behavior that is typically associated with a finding of severe impairment. For example, as discussed above, the Veteran has not endorsed actionable suicidal ideation, he does not perform obsessional rituals, and there is no indication he is a frequent shoplifter. Again, it is clear that he suffers from some occupational and social impairment, but this is reflected in his assigned GAF scores. Further, the Board notes that an examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. See VAOPGCPREC 10-95. Though the Board is aware that GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness, see Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV, the evidence of record more nearly approximates a finding of moderate symptomatology prior to June 22, 2009. Though the Board is sympathetic to the Veteran's sleep impairment, periodic intrusive thoughts/flashbacks, nightmares, and irritability, the Veteran does not meet any of the other relevant criteria and his total disability picture does not establish entitlement to an increased disability rating prior to June 22, 2009. The Board has identified no symptomatology or other aspect of the Veteran's service-connected PTSD, which lead to a conclusion that the criteria for a 70 percent rating were approximated. The record further indicates that the Veteran has not suffered total occupational and social impairment as would be required for the 100 percent disability rating. There is no evidence of gross impairment to thought processes and communication, persistent delusions or hallucinations or grossly inappropriate behavior. Nor is there danger of the Veteran hurting himself or others, a disorientation to time or place, memory loss or inability to perform activities of daily living. In summary, the evidence of record demonstrates that the Veteran's PTSD is manifested by some periods of anxiety, mild memory loss, sleep impairment, nightmares, flashbacks and some irritability. This appears to be productive of reduced reliability and productivity and moderate interference in his ability to interact effectively and efficiently. While in no way minimizing the effects of the Veteran's PTSD, the Board believes that such symptomatology is contemplated by the criteria for a 50 percent rating. The Board notes that the June 2009 VA examination and testimony show that the Veteran's PTSD symptoms are manifested by total social and occupational impairment; however, the Veteran has already been granted a 100 percent disability rating since June 22, 2009, the maximum schedular rating. Fenderson Considerations As noted above, the Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, the medical evidence of record appears to support the proposition that the Veteran's service-connected PTSD did not change appreciably since the Veteran filed his claim. There appear to have been no credible medical findings and no other evidence, which would allow for the assignment of an increased disability rating at any time during the period of time under consideration. Based on the record, the Board finds that a 50 percent disability rating was properly assigned for the period from the date of service connection to June 22, 2009. In summary, for the reasons and bases expressed above, the Board concludes that a preponderance of the evidence is against the Veteran's claim of entitlement to an increased rating for his service-connected PTSD. The benefit sought on appeal is accordingly denied. Extraschedular Criteria Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2011), Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111, 115 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran has not expressly raised the matter of entitlement to an extraschedular rating. The Veteran's contentions have been limited to those discussed above, i.e., that his PTSD is more severe than is reflected by the currently assigned rating. See Brannon, supra. Moreover, the Veteran has not identified any factors which may be considered to be exceptional or unusual with respect to his service-connected PTSD and the Board has been similarly unsuccessful. The record does not show that the Veteran has required any hospitalizations for his service-connected PTSD prior to June 22, 2009. There is no unusual clinical picture presented, nor is there any other factor, which takes the disability outside the usual rating criteria. In short, the evidence does not support the proposition that the Veteran's PTSD presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2011). ORDER Entitlement to an initial disability rating in excess of 50 percent, prior to June 22, 2009, is denied. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claims of entitlement to service connection for the residuals of a closed head injury and sleep apnea, entitlement to an initial disability rating in excess of 30 percent for ischemic heart disease, and entitlement to TDIU. Residuals of a Closed Head Injury As detailed in the procedural history above, in April 2011, the Board remanded the Veteran's claim of entitlement to service connection for the residuals of a closed head injury. At that time, the Board noted that in a July 2009 private neuropsychological evaluation, the Veteran reported a motor vehicle accident in April 1969, where he was rendered unconscious. Five days after his accident, the Veteran returned to active duty but reported ongoing headaches with difficulty bending over. As a result, the July 2009 private physician diagnosed the Veteran with a cognitive disorder, not otherwise specified (pre-concussional disorder), severe major depressive disorder, and PTSD (Axis I). He was also diagnosed with a traumatic brain injury and post-concussional syndrome (Axis III). Each of these diagnoses were related to the Veteran's active military service. It is unclear whether the private physician reviewed the Veteran's service treatment records. Additionally, the private physician failed to provide a statement of reasons and bases for this conclusion. Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). As such, the Veteran must be afforded a VA examination to determine the nature and etiology of his claimed residuals of a closed head injury. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. As this is the case here, the Veteran must be afforded a VA examination. Sleep Apnea With respect to the Veteran's claim of entitlement to service connection for sleep apnea, in April 2011, the Board determined that a careful review of the Veteran's VA and private treatment records did not reveal a diagnosis of sleep apnea. In order to be considered for service connection, a claimant must first have a disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). See also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Based on this lack of current diagnosis, the Board denied the Veteran's claim. In the January 2012 JMR, it was noted that notwithstanding the Board's determination, the Veteran's counsel was made aware of a medical record not included in the record before the Agency, or in the claims file, from the VA Medical Center (VAMC) in Battle Creek, Michigan. Review of this evidence revealed that the Veteran sought treatment for and was diagnosed with severe obstructive sleep apnea syndrome. Although this document was not in the Veteran's claims file at the time of the Board's April 2011 decision, the holding in Bell v. Derwinski, 2 Vet. App. 611 (1992), states that where "documents proffered by the appellant are within the Secretary's control and could reasonably be expected to be a part of the record 'before the Secretary and the Board,' such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record." As such, the JMR vacated and remanded this claim back to the Board for inclusion of this missing evidence into the record on appeal. In June 2012, the Veteran's counsel submitted VAMC treatment records. It is unclear whether the submitted VAMC treatment records are complete. As such, the RO must request all outstanding VAMC treatment records from July 2009 to the present. Further, the Veteran's counsel did not waive agency of original jurisdiction consideration of this newly submitted evidence and thus, the Board must remand the claim on this basis. See 38 C.F.R. § 20.1304 (2011). If deemed appropriate by the RO, the Veteran should also be scheduled for a VA examination to determine the likely nature and etiology of his diagnosed sleep apnea. See McLendon, supra. TDIU Since the assignment of service connection for the residuals of a closed head injury, sleep apnea and a higher disability rating for ischemic heart disease could impact the Veteran's claim for individual unemployability now on appeal, these issues are considered inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11, (1998). As such, following the development set forth in this Remand, VA should readjudicate the Veteran's claims, to include that of entitlement to TDIU. Ischemic Heart Disease As indicated above, in December 2011, the Veteran expressed disagreement with the December 2010 rating decision that granted him entitlement to service connection for ischemic heart disease and assigned a 30 percent disability rating. Since the filing of a NOD initiates appellate review, the claim must be remanded for the preparation of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archibold v. Brown, 9 Vet. App. 124, 130 (1996). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran by letter and request that he provide sufficient information, and if necessary, authorization, to enable the RO to obtain any additional identified pertinent treatment records not currently of record. Based on the Veteran's response, the RO should assist the Veteran in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be memorialized in the Veteran's claims file. If any identified records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe the further action to be taken. 2. The RO should obtain all available VAMC Battle Creek, Michigan, treatment records dated from July 2009 to the present. Any response received in association with this request should be memorialized in the Veteran's claims file. 3. Thereafter, the Veteran should be scheduled for a VA neurological examination, with an appropriate expert, to determine the nature and etiology of any diagnosed residuals of an in-service closed head injury. The VA examiner must thoroughly review the Veteran's claims file, as well as a complete copy of this remand, in conjunction with the examination. The examination report must indicate that this has been accomplished. The VA examiner should discuss the Veteran's documented medical history, private opinions, and any assertions regarding whether the Veteran has residuals of a closed head injury incurred in service. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The VA examiner should identify if the Veteran has any current residuals of a closed head injury, and if so, should provide a medical opinion as to whether it is at least as likely as not (at least 50 percent probable) that such residuals are due to head trauma in service. A full and complete rationale for any opinion expressed, including reference to all relevant medical treatise evidence, is requested. The examination report must be typed. 4. If deemed appropriate by the RO, the Veteran should also be scheduled for a VA examination, with an appropriate expert, to determine the likely nature and etiology of his diagnosed sleep apnea. The VA examiner must thoroughly review the Veteran's claims file, as well as a complete copy of this remand, in conjunction with the examination. The examination report must indicate that this has been accomplished. The VA examiner should discuss the Veteran's documented medical history and any assertions regarding whether the Veteran has sleep apnea as a result of his time in active military service. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The VA examiner should identify if the Veteran currently suffers from sleep apnea, and if so, should provide a medical opinion as to whether it is at least as likely as not (at least 50 percent probable) that such sleep apnea is the result of a disease or injury in active military service. A full and complete rationale for any opinion expressed, including reference to all relevant medical treatise evidence, is requested. The examination report must be typed. 5. The RO should then review the claims file to ensure that all the foregoing requested development has been completed, and thereafter, arrange for any additional development indicated. The RO should then readjudicate the remaining claims on appeal. If any benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case and provide the Veteran and his counsel the requisite time to respond. The claims should then be returned to the Board for further appellate review, if otherwise in order. 6. The RO should also provide the Veteran with a statement of the case as to the issue of entitlement to an initial disability rating in excess of 30 percent for ischemic heart disease. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b) (2011). If a timely substantive appeal is not filed, the claim should not be certified to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs