Citation Nr: 1231506 Decision Date: 09/13/12 Archive Date: 09/19/12 DOCKET NO. 10-42 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. The propriety of the reduction of the 70 percent disability rating for posttraumatic stress disorder (PTSD) to 30 percent, effective December 1, 2009. 2. Entitlement to an increased rating for PTSD rated 70 percent prior to December 1, 2009; and 30 percent disabling, beginning December 1, 2009. 4. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active duty service from September 1951 to July 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) located in St. Louis, Missouri, which reduced the disability rating for PTSD from 70 to 10 percent, effective December 1, 2009. A September 2010 rating decision partially restored the reduced rating by awarding a 30 percent evaluation, effective December 1, 2009. The Veteran filed a claim for entitlement to TDIU in February 2009. The RO considered this additionally as a claim for an increased disability rating for his service-connected PTSD, and provided him with a notification letter on the issue in March 2009. In argument before the Board, the Veteran's representative styled the issue as "entitlement to an increased evaluation in excess of 30 percent [for] PTSD." In a similar vein, the September 2009 statement of the case and the June 2012 supplemental statement of the case list the issue as an evaluation of the rating for PTSD. In its analysis with regard to the Veteran's reduction claim, the RO additionally considered whether the Veteran's symptoms met the criteria for higher disability ratings. As such, the Board will consider an increased disability rating for the Veteran's PTSD. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. By a January 2009 rating decision, issued in February 2009, the RO increased the Veteran's rating for PTSD to 70 percent, effective August 14, 2008. 2. In June 2009, the RO issued a rating decision that proposed to reduce the rating for PTSD to 10 percent; the Veteran was notified of that decision in August 2009. 3. In its November 2009 rating decision, the RO implemented the reduction to 10 percent, effective December 1, 2009. The Veteran was notified of that decision later in November 2009 4. By a September 2010 rating decision, the RO assigned a 30 percent disability rating, effective December 1, 2009. 5. The rating reduction was based on an examination showing improvement in the disability from PTSD. 6. The appropriate effective date for the reduction is January 31, 2010. 7. Prior to January 31, 2010, the Veteran PTSD was not manifested by total occupational and social impairment. 8. For the period beginning February 1, 2010, the Veteran's PTSD has been manifested by mild to moderate symptoms causing some occupational and social impairment. 9. For the period from January 6, 2009 to April 23, 2009, The Veteran's service-connected PTSD precluded employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for a restoration of a 70 percent disability rating to January 30, 2010 have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344, 4.130, Diagnostic Code 9411 (2011). 2. The reduction in disability rating for PTSD, from 70 percent to 30 percent effective January 31, 2010, was proper. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.105(e), 3.344, 4.130, Diagnostic Code 9411. 3. The criteria for a disability rating in excess of 70 percent for PTSD, for the period ending on January 31, 2010, have not been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411. 4. The criteria for a disability rating in excess of 30 percent for PTSD, during the period beginning February 1, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. § 4.1, 4.2, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411. 5. The criteria for a TDIU due to service-connected disabilities have been met from January 6, 2009 to April 23, 2009. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). With regard to the Veteran's claim for TDIU, the claim is substantiated for the period of time from January 6, 2009 to April 23, 2009, and there are no further VCAA duties as to that issue. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance 'if no reasonable possibility exists that such assistance would aid in substantiating the claim'); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). With regard to the VA's duty to notify and assist claimants in substantiating a claim for VA benefits, the Board points out that the procedural framework and safeguards set forth in 38 C.F.R. § 3.105(e) governing rating reductions were explained to the Veteran in adequate detail in an August 2009 letter prior to the rating reduction, and he was provided sufficient opportunity to present additional argument and evidence in opposition to the reduction. This is discussed in detail below. Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Court had held that at a minimum, adequate VCAA notice in an increased rating claim required that VA notify the claimant that, to substantiate such a claim: (1) 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; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazques-Flores v. Peake, 22 Vet. App. 37 (2008). The Federal Circuit vacated the Court's decision, overturning the requirement that VA provide notice that the claim could be substantiated by evidence of a disability's impact on daily life and that VA provide notice with regard to potential diagnostic code criteria (element 2). Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The generic first, third, and fourth elements (contained in the Veteran's court's decision) were not disturbed by the Federal Circuit's decision. Here, the Veteran was sent a letter in March 2009 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. The letter told him that he could substantiate the claim with evidence of its impact on employment, provided examples of evidence he could provide, and how ratings were provided. Accordingly, the Veteran received adequate notice under the VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains the Veteran's post-service reports of VA treatment. His statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Veteran submitted a statement in April 2009 wherein he stated that he had no other information or evidence that would help to support his claim. The Veteran has been provided with several examinations over the appeals period, in order to determine the nature and severity of his service-connected PTSD. The examination reports contain all findings needed to rate his PTSD, and there is no indication of any change in the disability since the last examination. For the above reasons, no further notice or assistance is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Procedural History The RO granted service connection for PTSD in an October 2007 rating decision with an initial rating of 30 percent, effective September 12, 2005. In August 2008, within a year of this rating decision, the Veteran filed two statements pertaining to his in-service stressors, and expressing his contentions that his PTSD should be service-connected. The Board has determined that these statements do not provide any new and material evidence with regard to his initial 30 percent disability rating. There were no other submissions to the evidence of record during the year following the October 2007 decision. The Veteran filed a claim for TDIU in February 2009, after the initial one year appeals period, prompting the RO to evaluate the disability rating for PTSD. As such, this is not an initial rating claim. See 38 C.F.R. § 3.156(b) (2011); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In the November 2009 rating decision, the RO reduced the rating for PTSD from 70 percent to 10 percent, as of December 1, 2009; however, in a September 2010 rating decision, the RO increased his disability rating to 30 percent, as of December 1, 2009. Reduction The provisions of 38 C.F.R. § 3.105 apply to reductions. 38 C.F.R. § 3.105(e) requires that, when a reduction in evaluation of a service-connected disability is considered warranted, and a reduction will result in a decrease in payment of compensation benefits being made, a rating proposing reduction will be prepared setting forth all material facts and reasons. The beneficiary will be notified and furnished detailed reasons therefore and given 60 days for presentation of additional evidence to show that compensation payments should be continued at the current level. If additional evidence is not received within that period, a final rating action will be taken and the award will be reduced effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Additionally, under 38 C.F.R. § 3.105(i), the advance written notice concerning a proposed rating reduction must inform the beneficiary that he has a right to a predetermination hearing provided that a request for such a hearing is received by VA within 30 days from the date of the notice. The procedural framework and safeguards set forth in 38 C.F.R. § 3.105 governing rating reductions are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The RO sent the Veteran a letter in August 2009 advising him of the proposed reduction in the rating for PTSD from 70 percent to 10 percent, and included a copy of the rating decision for the proposed reduction. The letter informed the Veteran that he could submit additional evidence to show that the compensation payments should be continued at the then-current levels, and that if no additional evidence was received within 60 days, his disability evaluation would be reduced. Furthermore, the Veteran was advised of his right to request a hearing "to present evidence or argument on any important point in your claim." The Veteran did not request a hearing. While he submitted further evidence during this time, it was appropriately considered and found to be not persuasive with regard to the reduction. Thereafter, more than 60 days later, the RO reduced the Veteran's disability rating as of December 1, 2009, in a November 2009 rating decision. The effective date is, however, not in accord with the provisions of 38 C.F.R. § 105(e). Notice of the November 2009 rating decision was sent to the Veteran on November 17, 2009. The 60 day period after the notice was sent ended on January 16, 2010, and the last day of that month was January 31, 2010. Accordingly, the rating reduction should have been made effective January 31, 2010. The failure to select the proper effective date did not render the RO's decisions void ab initio, but only voidable. VAOPGCPREC. 31-97, 1997 WL 34674484, (D.V.A.), (Aug. 29, 1997). Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). With respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c); see Smith v. Brown, 5 Vet. App. 335 (1993). PTSD is rated under Diagnostic Code 9411, which provides ratings under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. The following ratings are provided for psychiatric disabilities: A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication, a noncompensable (0 percent) rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication, a 10 percent rating. Id. Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), a 30 percent rating. Id. Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, a 50 percent rating. Id. 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 worklike setting); inability to establish and maintain effective relationships, a 70 percent rating. Id. 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 100 percent rating. Id. Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32. GAF scores ranging from 71 to 80 indicate that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after a family argument); and that there is no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 and 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. 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 from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). The RO increased the Veteran's disability rating based on a VA examination provided in January 2009. At that time, the Veteran's symptoms included hypervigilance, exaggerated startle response, panic episodes, a sense of a foreshortened future, avoidance of discussion of war, distress when exposed to references of war trauma, a limited ability for loving/caring feelings toward others, intrusive recollections and nightmares, and sleep problems, which resulted in the Veteran sleeping in a separate bed from his wife. The Veteran indicated that he had good relationships with his family, including his wife of 49 years. He had few friends, however, and seldom saw them. He preferred not to be around people and to be without company. The examiner noted social estrangement, self-imposed isolation and social phobia, and that the Veteran's symptoms were severe, chronic and ongoing. In terms of the effects of specific symptoms on his social interaction, the Veteran was noted to exhibit disorganized speech, which was moderate to severe, and disallowed normal conversation with others. His anxiety was moderate, and resulted in aggravating his family members. His sleep impairment was moderate to severe, and interfered with his relationship with his wife. He was assigned a GAF of 40. The examiner noted that his symptoms were severe enough to interfere with social and occupational functioning and that he had a poor prognosis. The Veteran underwent another VA examination in April 2009. He reported a history of difficulty with sleep, nightmares, flashbacks, exaggerated startle response, and avoidance of television or radio reports about war. These symptoms were described as mild to moderate He reported a close relationship with his wife, her children and their daughter. But there had been a periodic strain in his marriage due to his sleep problems, including nightmares, that caused him to sleep in another bed. He had a few friends who he met weekly at a coffee shop, but did not like to be around crowds. He indicated that he enjoyed going to a gambling boat. The examiner noted pressured speech, which was evident whenever the Veteran spoke of his combat-related experiences as well as when he described attempting to avoid talk of battle on the television or radio. He reported anxiety that increased when he was not on schedule or when he had to wait for someone. This resulted in stress with family members. His sleep problems were mild to moderate, when he was not on medication, but he was currently taking a sleep medication. The Veteran did not have a depressed mood, impaired memory, panic attacks, abnormal speech, or suicidal or homicidal ideation. The examiner assigned a GAF score of 60, with a guarded prognosis. This examination caused the RO to issue the June 2009 rating decision proposing to reduce the rating for PTSD to 10 percent. The November 2009 rating decision carried out the proposed reduction. The November 2009 decision considered VA treatment records reflecting treatment from August to October 2009. These records reflect that the Veteran was feeling good overall. His anxiety was at a level of 5/10 at worst, and was controlled well by medication. The Veteran indicated that he was sleeping seven to ten hours per night, and that, while he was still leery of going out in public, he looked forward to going out on Fridays to the grocery store, stopping at the VFW to socialize with people, and going out to dinner with his wife. He denied any significant PTSD symptoms. He was assigned GAF scores of 76-80. A September 2010 rating decision assigned a 30 percent disability rating as of December 1, 2009, in place of his reduced disability rating of 10 percent, based upon a longitudinal review of the Veteran's examination reports and medical records. The September 2010 rating decision was also based on a progress note in February 2010, which showed that the Veteran reported worsening of some of his symptoms, including an increase in flashbacks and avoidance symptoms. The examiner assessed PTSD of mild to moderate severity, and assigned a GAF of 60. VA medical records reflected reports of good relationships with his family, and that he had retired from work as a foreman after 30 years and reported that he was a retired farmer, as well. It is clear from the regulation that because the Veteran's 70 percent rating had not been in effect for more than five years, it could be reduced on the basis of a re-examination disclosing improvement in the disability. 38 C.F.R. 3.344(c). The January 2009 examiner found that the Veteran's PTSD symptoms were severe enough to interfere with social and occupational functioning. This was additionally reflected in the assigned GAF score of 40, reflecting major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. At his April 2009 VA examination, however, the Veteran indicated that he met with friends on a regular basis. The examiner found that his PTSD symptoms were moderate, and assigned a GAF of 60, reflecting moderate difficulty in social, occupational, or school functioning. The later examination showed that he did not have the previously reported panic attacks, that his GAF had greatly improved, and his sleep difficulties had abated with medication. While the previous examination described his family relations as "good" and "alright;" the April 2009 examination described these relationships as "close." At the January examination it was noted that he seldom saw friends, while the April examination reports that he saw a group of friends on a weekly basis. At the January 2009 examination it was reported that the Veteran isolated himself and avoided people, while the April examination report shows that he enjoyed getting together with friends. On its face, the April 2009 examination disclosed improvement in the disability, and therefore warranted a reduction in the rating. 38 C.F.R. § 3.344(c). In addition, the evidence of record since the April 2009 examination supports this reduction in disability rating, when taken in consideration of whether the his PTSD has actually improved. The Veteran has disputed some of the evidence, reporting in his notice of disagreement that when he went out, he sat with his back to corner and watched both entrances, that he had never said he was planning to return to work, and that he was distrustful at the approach of others and had a sever startle reflex. He also said that if he did not take medication he could not function out in society, and he characterized his visits to the VFW as therapy and unofficial group meetings. The available evidence reflects that the Veteran was retired and aged 80 at the time of the rating reduction. The record does not include reports that he planned to return to work. The question; however, is what level of occupational impairment is caused by PTSD. Clinicians and examiners since April 2009, did not find more than moderate occupational impairment attributable to PTSD (as shown by the GAFs and other findings). While the Veteran characterized his startle reaction as severe, the VA examiner characterized it as moderate. In any event, a severe startle reaction would not by itself show that there had been no improvement in his disability. It may also be true that the Veteran would experience greater difficulty functioning were it not for medication. The record; however, shows that regardless of the reasons, he has been able to function with only mild to moderate impairment since the April 2009 examination. The Veteran may consider his interactions at the VFW to be therapeutic, but they are nonetheless evidence of his ability to function socially. He has characterized the member of this group as his friends and reportedly looks forward to seeing them. As such, the Board finds that the reduction of the Veteran's disability rating for his service-connected PTSD from 70 percent to 30 percent to be proper, as of January 31, 2010, as noted above. Increased rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by a Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In cases of increased rating claims for psychiatric disabilities, the Court has held that the use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Disability rating in effect prior to January 31, 2010 The evidence of record reflecting treatment and examination results prior to January 31, 2010 does not reflect symptoms approximating total social and occupational impairment due to his PTSD symptoms. The January 2009 VA examination, shows, notwithstanding the symptoms and GAF noted above, that the Veteran remained married to his wife of 49 years and maintained "good" relations with family members. He went out for dinner, and occasionally saw friends. This level of functioning shows that his disability did not approximate total social impairment. As noted, the April 2009 VA examination and subsequent treatment records actually showed a higher level of functioning than on the January 2009 examination. The Veteran was assigned a GAF score reflecting only moderate difficulty in social and occupational functioning. Treatment records for the period prior to the April 2009 examination also do not indicate total social and occupational impairment. Records dated in May and October 2008 show that the Veteran's mental status examination was normal, and that he was assessed with GAF scores of 80, reflecting symptoms that, if present, were transient and expectable reactions to psychosocial stressors and caused no more than slight impairment in social, occupational, or school functioning. An April 2009 VA medical record reflects the Veteran's reports that he was sleeping seven to ten hours a night, and looked forward to going out to eat, going to get groceries on Friday afternoons, and socializing at the VFW. He was assigned a GAF of 76-80. An October 2009 VA medical record reflects that the Veteran reported that the medication he had been prescribed helped with ability to be out in public and that, while leery about being around people, he could go out in public much more easily. His mood overall was good, and he indicated that he continued to enjoy dining out with his wife and stopping by the VFW to socialize with friends. The examiner assigned a GAF score of 76-80. The Veteran has been found to meet the criteria for a 30 percent disability rating under Diagnostic Code 9411 based on his April 2009 examination; however, as noted above, under VA regulations, he is entitled to a 70 percent disability rating until January 31, 2010. As such, while the evidence since his April 2009 examination does not reflect symptomatology consistent with a 70 percent disability rating under the rating criteria for Diagnostic Code 9411, he is entitled to this rating. Therefore, evaluating his disability rating to determine whether his symptoms meet the criteria for a 70 percent disability rating is not necessary. Mauerhan. However, as noted, there is no evidence that supports a finding of total social and occupational impairment for the time period prior to January 31, 2010. The Veteran's PTSD symptoms during this time are moderate, at most, and have been noted to be mild at times. As such, a 100 percent disability rating is not warranted for this period. Disability rating in effect beginning January 31, 2010 Based on the evidence of record, the Veteran's PTSD does not meet the criteria for a higher disability rating as of January 31, 2010. A February 2010 VA medical record shows that the Veteran was doing fairly well with his PTSD symptoms under relatively good control. He indicated that he felt he had an increase in PTSD symptoms since his last visit, and the examiner noted that this was normal with regard to PTSD, as symptoms would wax and wane. He indicated that he had worked at a Pepsi plant for 30 years in order to avoid other people. He felt that the worsening of his symptoms was due to his wife's illnesses, his decrease in disability from the VA, and witnessing young soldiers returning from Iraq and Afghanistan. He noted increased flashbacks to his time in Korea. He reported that he continued to be wary of people behind his back and did not like to be in crowds. There were times when he could socialize, but at other times he felt detached from conversations and interacting openly with people. He remained somewhat hypervigilant, required medicine for sleep and had infrequent nightmares about his combat experiences. He reported his mood was "okay," but that he was anxious about his financial situation. The examiner noted that the Veteran's mood was anxious, and that his affect was constricted to mood. His speech was of regular rate and rhythm, his thought processes were linear, and his judgment and insight were fair. The examiner diagnosed chronic PTSD and major depressive disorder in full remission assigned a GAF score of 60. An April 2010 VA medical record shows that the Veteran was upset about his recent decrease in disability rating from the VA, and his wife's illness. The Veteran indicated that he his PTSD symptoms had affected his ability to work with other people and, therefore, he had no pension. He noted that he continued to have occasional nightmares, but that he slept 11 hours per night. He noted no change in energy or concentration, and that his children had thrown a surprise 50th anniversary party for him and his wife, and that he had a very good time. He also noted that his PTSD symptoms had prevented him from having a job where he could interact with people, and thus he had no other pension benefits. The examiner noted that the Veteran's mood was neutral, at a 3-4/10. His affect was restricted. His speech was of regular rate and rhythm, his thought processes were goal oriented and logical, and he had no impairment of memory. He had insight into his illness and was able to understand situations and act appropriately. The examiner diagnosed chronic PTSD and major depressive disorder in full remission, assigned a GAF score of 60-65. A July 2010 VA medical record shows that the Veteran slept pretty well at night, and that his energy was good most of the time and that he was able to mow the lawn and do work around the house. He occasionally had nightmares and was concerned about his wife's ongoing health problems. The examiner noted that the Veteran was pleasant and cooperative, and made good eye contact with the examiner. His mood was neutral and his affect was full. Memory and concentration were normal and his thought process was linear. The examiner diagnosed chronic PTSD and major depressive disorder in full remission assigned a GAF score of 60. A May 2012 VA examination report shows that the Veteran experienced mild to moderate functional impairment in a variety of areas as a result of his PTSD symptoms, which included re-experiencing symptoms, avoidance symptoms, and hyperarousal symptoms. The Veteran reported chronic sleep impairment that left him feeling fatigued and with limited ability to concentrate. Even with treatment with trazadone, which had been "extremely helpful," the Veteran reported getting approximately six to seven hours of sleep per night. The Veteran still reported daytime fatigue. Additionally, he reported a limited social network during the period since his last examination. He stated he goes to the VFW to "talk to the boys" approximately once per week, and enjoyed the social contact. He stated that he was getting better with regard to tolerating social situations. The examiner noted that occupational impairment could not be assessed, as the Veteran was retired and had not worked during the current review period. However, he did note that the most appropriate summary to describe the Veteran's level of occupational and social impairment was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior self-care and conversation. The Veteran's report of symptoms and their contribution to functional impairment was assessed to be consistent with a GAF score of 58. The evidence of record does not show that the Veteran's PTSD warrants a higher disability rating as of January 31, 2010. The Veteran's symptoms were found, overall, to cause social and occupational impairment that was considered to be mild to moderate, as reflected by examinations, treatment records, and his assigned GAF scores of 58-65 since January 31, 2010. The medical records and examination reports show that, while the Veteran did have some impairment in social functioning in that he was uncomfortable going into crowded places, he was able to maintain meaningful relationships in his life, including those with his family and friends. His examiners did not provide an opinion as to his occupational impairment, since the Veteran had not worked for many years after his retirement; however, the GAF scores assigned since January 31, 2010 reflect a disability picture that includes moderate difficulty in social and occupational functioning, or some difficulty in social and occupational functioning, but generally functioning pretty well. The Veteran has not made any contentions with regard to his current employability. While the list of symptoms provided in the rating criteria are only a guide to rating a psychiatric disability, they should be considered when assessing the effect on the Veteran's occupational and social impairment. It is significant to note that the March 2012 examiner found that the Veteran's symptoms most closely resemble those set out in the criteria for a 30 percent disability rating. In addition, the symptoms reflected in the medical records and VA examination reports, such as routine behavior, self care and normal conversational abilities, along with anxiety and chronic sleep impairment, are contemplated in the criteria for a 30 percent disability rating. In this regard, the evidence has not reflected any of the examples of symptoms listed in the 50 percent criteria, including a flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks, difficulty in understanding complex commands; impairment of memory, judgment and abstract thinking. See Mauerhan (noting that while the listing of symptoms is for example only, it would be difficult to distinguish the criteria for a 50 percent rating from the criteria for a 30 percent rating without consideration of those symptoms). The Veteran's level of functioning shows that he has not had difficulty maintaining social relationships. Hence the evidence is against a finding that the disability has been more than 30 percent disabling since January 31, 2010. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, in this case, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Extraschedular considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2011). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 3.321. The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). The symptoms associated with the Veteran's PTSD, impairment in occupational and social functioning, are contemplated by the rating criteria set out in Diagnostic Code 9411. 38 C.F.R. § 4.130, Diagnostic Code 9411. Thus, the evidence does not support referring this case for an extraschedular evaluation. TDIU The United States Court for Veterans Appeals (Court) has held that entitlement to a TDIU is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The issue does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case, the Veteran has submitted a claim for TDIU, contending that he cannot work due to his service-connected PTSD and tinnitus and has not limited to appeal for a higher evaluation. As such, a claim for TDIU is before the Board. The Veteran meets the percentage requirements for a TDIU from August 14, 2008 to February 1, 2010. 38 C.F.R. § 4.16(a). As such, the Board may decide the TDIU claim for this period without referral to the VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). The evidence of record shows that the Veteran was unemployable due to PTSD for the period from January 6 to April 23, 2009. An October 2008 VA medical record shows that the Veteran had experienced improvement of his anxiety, and that he denied a low mood. He was assigned a GAF of 80, reflecting mild PTSD symptoms. At his January 2009 VA examination; however, the Veteran's symptoms were severe. The examiner noted social estrangement, self-imposed isolation and social phobia, and that the Veteran's symptoms were severe, chronic and ongoing. He could not have normal conversation with others, and had anxiety that was in the moderate range. His symptoms were severe enough to interfere with social and occupational functioning and he was assigned a GAF of 40, reflecting major impairment in several areas, including being unable to work. As such, at this point, the Veteran met the criteria for TDIU. All subsequent GAFs and findings were indicative of an ability to work, and there was no evidence of unemployability during the period beginning with his April 2009 examination, when he was assigned a GAF of 60, reflecting only moderate difficulty in social and occupational functioning. The GAF scores during treatment were much higher, from 76 to 80. Because there has been no evidence of unemployability since April 2009 or prior to January 2009, a TDIU is not warranted. The evidence fails to show that the Veteran was unable to work due to PTSD symptoms alone at any time sincehis April 2009 VA examination, and his GAF scores during this period do not reflect an inability to work. The Veteran meets the criteria for a TDIU as of his January 6, 2009 VA examination, as this examination reflected his inability to work due to his service-connected PTSD; however, the evidence of record does not reflect that the Veteran could not work due to his service-connected PTSD alone as of his April 24, 2009 VA examination. (CONTINUED ON NEXT PAGE) ORDER Reduction of the disability rating for PTSD from 70 percent to 30 percent as of December 1, 2009 was not proper; restoration of a 70 percent disability rating is granted to January 30, 2010. Reduction of the disability rating for PTSD from 70 percent to 30 percent as of January 31, 2010 was proper. A disability rating in excess of 70 percent for PTSD, prior to January 31, 2010, is denied. A disability rating in excess of 30 percent, beginning January 31, 2010, is denied. TDIU is granted from January 6, 2009 to April 23, 2009. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs