Citation Nr: 1300511 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 06-32 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial rating higher than 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from March 1970 to March 1974. The appeal to the Board of Veterans' Appeals (Board/BVA) is from a March 2005 decision of a Department of Veterans Affairs (VA) Regional Office (RO) granting service connection for PTSD and assigning an initial 30 percent rating retroactively effective from September 28, 2001, the date of receipt of this claim. The Veteran appealed for a higher initial rating for this disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 1999) (When a Veteran appeals an initial rating, VA must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of his award to compensate him for variances in the severity of his disability, that is, for times when it has been worse than at others). Another RO decision since issued in November 2007, during the pendency of this appeal, increased the initial rating for the PTSD from 30 to 70 percent retroactively effective from the same date of September 28, 2001. The Veteran continued to appeal, requesting an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (it is presumed he is seeking the highest possible rating absent express indication to the contrary). In May 2011, as support for his claim, he testified at a hearing at the RO in Los Angeles, California, before a Veterans Law Judge (VLJ) of the Board. This type of hearing is often and more commonly referred to as a Travel Board hearing. The VLJ that presided over that hearing subsequently, in September 2011, remanded the claim to the RO via the Appeals Management Center (AMC) for further development and consideration. However, that VLJ is no longer employed by the Board, since having retired. VA regulations require that the Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). In a September 2012 letter, the Board notified the Veteran of that Judge's retirement and of the consequent options, including the right to have another hearing before a different VLJ that would ultimately decide the appeal. But that letter, sent to the Veteran's last known address, was returned to the Board as undeliverable. He has not provided an updated mailing address, and he has a duty to keep VA apprised of his current address. Jones (Raymond) v. West, 12 Vet. App. 98 (1998); Hyson v. Brown, 5 Vet. App. 262, 265 (1993). If he does not, VA is not obligated to "turn up heaven and earth to find him." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Moreover, there is a "presumption of [administrative] regularity" that applies to the official acts of public officers, and in the absence of clear evidence to the contrary, it must be presumed they have properly discharged their official duties. See Ashley v. Derwinksi, 2 Vet. App. 62, 64 (1992); Mindenhall v. Brown, 7 Vet. App. 271 (1994). In November 2012 written argument, the Veteran's representative also observed that the Board's letter was returned as undeliverable, but offered no updated mailing address. It therefore appears the Veteran never received notice of that VLJ's retirement and the opportunity for an additional hearing. But this notwithstanding, VA's duty to assist him with his claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the normal course of events, it is his burden and responsibility to keep VA apprised of his whereabouts, so to provide an updated mailing address. He has not fulfilled his obligation to supply VA with an updated mailing address, so the Board is not required to further delay adjudication of this claim, especially since there is no alternative address at which he might be contacted. Regarding another matter, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court/CAVC) held that VA must address the issue of entitlement to a total disability rating based on individual unemployability (TDIU) in claims for higher ratings when the issue of unemployability either is expressly raised by the claimant or otherwise by the record. There was a similar holding in Mayhue v. Shinseki, 24 Vet. App. 273 (2011), finding it was inappropriate to have treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his PTSD. Citing Rice, the Mayhue Court reasoned that a request for a TDIU is not a separate claim for benefits, rather, an attempt to obtain an appropriate rating for a disability. Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying claim. See also Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (wherein the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that once a claimant: (1) submits evidence of a medical disability, (2) makes a claim for the highest possible rating, and (3) submits evidence of unemployability, an informal TDIU claim is raised under 38 C.F.R. § 3.155(a)). But having said all of that, bifurcation of a claim is generally a matter within VA's discretion. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (en banc) (holding that it is permissible for the Secretary to bifurcate a request for benefits on the basis of direct service connection from the request on the basis of presumptive service connection). The Veteran in this case was awarded a TDIU from September 28, 2001, to August 2, 2005. Thereafter, he received a 100 percent schedular rating for his ischemic heart disease (IHD) from August 2, 2005, until November 15, 2007, and was again awarded a TDIU from November 16, 2007, to the present. Hence, he has had either a TDIU or 100 percent schedular rating since filing his September 28, 2001 claim. The result is that there is no derivative TDIU claim still to consider, only instead the claim as it specifically concerns the rating for the PTSD. FINDING OF FACT Although the Veteran is unemployable on account of the combined effect of his service-connected disabilities, thus, the reason he has a TDIU, so not just when considering his PTSD alone but also his IHD, status post coronary artery bypass graft and myocardial infarction, his PTSD does not itself cause total occupational and social impairment. CONCLUSION OF LAW The criteria are not met for an initial rating higher than 70 percent for the PTSD. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist obligations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim, including apprising them of the information and evidence the Veteran is responsible for providing versus the information and evidence VA will obtain for him. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). A VCAA letter was sent to him in March 2002, prior to initially adjudicating his claim of entitlement to service connection. The letter indicated the type of evidence and information needed to substantiate this claim and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. After service connection was granted, he was informed in a March 2006 letter as to how a "downstream" disability rating and an effective date are assigned, in compliance with Dingess. An additional VCAA letter was sent to him in September 2011. His appeal concerns his "downstream" claim for a higher initial rating for his PTSD, which, as mentioned, since has been increased during the pendency of this appeal from 30 to 70 percent retroactively effective from the date of receipt of his claim. And in Dingess, the Court held that in cases, as here, where service connection has been granted and an initial disability rating and effective date assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose the notice is intended to serve has been fulfilled. Id., at 490-91. Thereafter, once a notice of disagreement (NOD) has been filed contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Here, in the August 2005 NOD, the Veteran took issue with the initial 30 percent rating assigned for his PTSD, and as mentioned it is presumed he is seeking the highest possible rating or maximum benefit available under the law. Id; see also AB. Therefore, in accordance with 38 U.S.C.A. §§ 5103A , 5104, and 7105(d), the RO/AMC sent him an SOC and SSOCs that, in pertinent part, contained the criteria for establishing his entitlement to higher ratings for his PTSD and a discussion of the reasons and bases for not assigning higher ratings. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). Regarding the duty to assist, the Veteran's relevant medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This includes his service treatment records (STRs) and post-service VA evaluation, treatment, and compensation examination reports, Vet Center treatment notes, private medical evidence, records from the Social Security Administration (SSA), his personal statements, and other supporting lay statements. Pursuant to the Board's September 2011 remand, the Veteran most recently underwent a VA social work and industrial survey in March 2012 as well as a VA mental status examination in August 2012. The information and evidence needed to properly rate his PTSD was obtained and there was compliance with the Board's September 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with a remand directive, as a matter of law, and the Board itself commits error in failing to ensure compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", even if not "exact" or "total", compliance with a remand directive and still satisfy the purpose of the remand). The March and August 2012 VA industrial survey and compensation examination reports are sufficiently comprehensive and supported by the other evidence of record. These examinations are adequate for rating purposes as the claims file was reviewed, so the examiners considered the relevant history, and since they examined the Veteran personally, provided findings in sufficient detail to address the applicable rating criteria, and included discussion of the underlying rationale for their opinions and conclusions regarding the severity of the PTSD. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the examinations are adequate upon which to base a decision in this appeal. The Veteran was specifically examined to assess and then reassess the severity of his PTSD. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. §§ 3.326 and 3.327. Thus, "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Claim for a Higher Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's claim, as mentioned, arises from his disagreement with the initial rating assigned following the granting of service connection for his PTSD. In Fenderson, supra, the Court noted the distinction between a new claim for an increased evaluation of a service-connected disability and a case in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service connected. In the Fenderson scenario, where the Veteran has expressed dissatisfaction with the assignment of an initial rating, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim - a practice known as "staged" rating. Fenderson, 12 Vet. App. 125-126. The Court since has extended this practice even to claims that do not involve initial ratings, rather, also established ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). While the Veteran is competent to offer evidence as to the visible symptoms or manifestations of a disease or disability, his belief as to its current severity under pertinent rating criteria or the nature of the service-connected pathology is not probative evidence. Layno v. Brown, 6 Vet. App. at 470 (1994); Grottveit v. Brown, 5 Vet. App. at 92-93 (1993). Although, as mentioned, during the pendency of this claim, the rating for the Veteran's service-connected PTSD was increased from 30 to 70 percent pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, he believes this disability is even more severe and, therefore, warrants an even higher rating. The only remaining rating is 100 percent, and he does not satisfy the requirements of this even greater rating. Mental disorders are evaluated under a General Rating Formula found at 38 C.F.R. § 4.130. In addition, the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed in 38 C.F.R. § 4.130. When evaluating a mental disorder, the evaluation must be based on all the evidence of record bearing on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). According to the General Rating Formula for Mental Disorders found at 38 C.F.R. § 4.130, the Veteran's current 70 percent 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); and inability to establish and maintain effective relationships. Id. The next higher, and maximum, 100 percent 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; and memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also 38 C.F.R. § 4.130. In determining whether the Veteran meets the criteria for an increased rating, the Board must consider whether he has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). In evaluating the evidence, the Board also has considered Global Assessment of Functioning (GAF) scores that evaluating clinicians have assigned. A GAF score is a scaled rating 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 at 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence bearing on occupational and social impairment. See generally 38 C.F.R. § 4.126 VAOPGCPREC 10-95. The higher the score, the higher the overall functioning of the individual is. According to the DSM-IV, a score of 51-60 represents "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)." See 38 C.F.R. § 4.130. In comparison, a GAF score in the higher 61-70 range is indicative of some "mild" symptoms or some difficulty in social or occupational functioning, but generally functioning pretty well and has some meaningful interpersonal relationships. Id. Evidence relevant to the severity of the Veteran's PTSD includes an October 2001 statement from O.A.S., a long-time friend of the Veteran. O.A.S. noticed changes in the Veteran when he returned from Vietnam. He indicated the Veteran did not communicate as much as he did in the past, was paranoid about people, and anxious. In another October 2001 statement, L.H. indicated that she too had been a friend of the Veteran since 1974, and more recently had worked as an Assistant Principal at the school where the Veteran was previously employed as a music teacher. She described him as argumentative, angry in the classroom, and paranoid. She also stated that he was consistently late for work and would fall asleep in class. She indicated that his problems became progressively worse. In another October 2001 statement, L.L.L. indicated that she and the Veteran were engaged to be married. She believed his experience in Vietnam had had a negative effect on his every day life. She said he had a strange reaction to loud noises, had difficulty falling asleep at night, and experienced nightmares. She described him as very angry. In a November 2001 statement, B. M., a guidance counselor employed by the school where the Veteran was previously employed, witnessed the Veteran to be depressed, angry, and full of rage during his last two years at the school, from approximately 1998 to 2000. She indicated he had become withdrawn and noticed that he felt alienated from the school staff and in his personal life. Overall, B. M. thought the Veteran had lost control. In connection with an unrelated SSA claim, the Veteran underwent a psychiatric evaluation in December 2001 by a private physician, Dr. I. N. That physician noted that the Veteran was initially vigilant and suspicious during the interview, but later became cooperative and forthcoming. His speech was described as slow, monotonous, and spontaneous. He did not display any unusual movements. His speech was coherent and there were no signs or symptoms of a formal thought disorder. His mood was bitter, and his affect was restricted. He denied any current or past suicidal thoughts, any auditory or visual hallucinations, thought withdrawal, insertion, broadcasting, control, or influence. He had no intent to harm anyone. A paranoid behavior was not observed. He was alert and attentive throughout the interview and well oriented to time, person, and place. His registration was 3/3, and his recall was 2/3 in five minutes. There was no memory impairment. Insight and judgment were fair. The physician continued a diagnosis of PTSD, which was manifested by flashbacks, intrusive memories, social withdrawal, disturbed sleep, traumatic nightmares, hypervigilance, startle response, depressed mood, difficulty in maintaining supportive relationships, and complicated by unemployment and an unstable living situation. According to a December 2001 statement, H.W., a fellow service member, described the traumatic events he and the Veteran had endured during their service. In May 2002, the Veteran underwent a VA mental health examination. He presented to the examination casually dressed with adequate hygiene. He was cooperative, alert, and fully aware of interview situation. He was in contact with reality. His mood was anxious, and his affect was broad and appropriate. His thought process was coherent and logical. There was no evidence of psychomotor retardation, agitation, tics, tremors, or abnormal involuntary movements, delusions, or hallucinations. There were no persistent intrusive or distressing thoughts about traumatic experiences in combat. He had no phobias, obsessions, or suicidal ideations. He was oriented in all spheres. His memory was intact for all events. His abstraction capacity was normal. His judgment and insight were described as good. A history of a psychiatric admission in the mid-1990's was noted. After a reviewing the claims file and performing a clinical history of the Veteran's mental status, the examiner concluded the Veteran's mental disorder did not meet the DSM-IV criteria for a diagnosis of PTSD. Rather, the examiner diagnosed the Veteran with an anxiety disorder, not otherwise specified. A GAF score of 60 was assigned. A copy of a Social Security Determination letter dated in July 2002 shows the Veteran was deemed disabled per the SSA from June 2000 on account of affective disorder (primary diagnosis) and PTSD (secondary diagnosis). In April 2004 correspondence, Dr. I. N. wrote to the attorney who represented the Veteran in connection with his claim for SSA disability. After a review of the Veteran's psychiatric history since 2001, Dr. I. N. concluded the Veteran met the criteria for a diagnosis of PTSD. In May 2004, the Veteran testified before a Decision Review Officer sitting at the RO in San Juan. The issue at that time was entitlement to service connection for PTSD, so the cause of this condition and its potential relationship with his military service rather than its severity. The Veteran had an additional VA mental health examination in October 2004. He was well-groomed, cooperative, and oriented as to time, place, and person. Inappropriate behavior, over-activity, motor retardation, or tremors were not demonstrated. His mood was described as euthymic, and his affect was described as congruent with his mood. The Veteran's speech was audible and goal-directed with some loose associations. His attention and concentration was fair, and his memory good. Hallucinations, illusions, and/or panic attacks were not reported. The Veteran's intelligence/reasoning ability was noted as average. His judgment and insight were fair. He did not describe any suicidal or homicidal ideations. There was evidence of paranoia, loose associations, impaired impulse control, and sleep impairment. Axis I diagnosis was chronic PTSD secondary to his military service. The examiner assigned a GAF score of 59. In March 2006, the Veteran underwent an additional VA examination to determine the nature and severity of his PTSD. There was no impairment of thought process or communication. There was also no evidence of delusions, hallucinations, inappropriate behavior, or suicidal thoughts, ideation, plans, or intent. The Veteran was able to maintain personal hygiene and basic activities of daily living. He was oriented as to person, place, and time. There was no memory loss or impairment. There was also no presence of obsessive or ritualistic behavior which interfered with routine behavior. The Veteran's rate and flow of speech was normal. There were no panic attacks or impaired impulse control. The Veteran reported feeling some depression and reported ongoing sleep problems. He was employable. Axis I diagnosis was chronic PTSD; marijuana, cocaine, and alcohol dependence. GAF score was 59. According to a January 2008 VA mental health note, the Veteran's mood was anxious, and his affect was full. There was no evidence of psychomotor agitation. He had a normal rate of speech and was oriented in all spheres. His behavior was appropriate during the interview. He denied and did not appear to experience any hallucinations, illusions, delusions, and ideas of reference or influence. His long-term memory was intact. He also denied any suicidal or homicidal plans. His judgment and insight seemed intact. A diagnosis of PTSD was continued. A GAF score of 70 was assigned. The treating psychiatrist stated that the Veteran functioned pretty well. A September 2009 VA psychiatry outpatient clinic note indicates that the Veteran was seen for a follow up visit. The Veteran reported his mood as "okay." His speech was spontaneous and calm. His affect was appropriate. His thought process was linear and goal directed. He denied any suicidal or homicidal ideations, as well as any auditory or visual hallucinations. He denied any depression or irritability and deferred psychotropic medication at that time. His PTSD symptoms included sleep disturbance due to nightmares, anxiety, avoidance of crowds, hypervigilance, and increased startle response. In February 2010, the Veteran underwent an additional mental health examination which was performed on contract with QTC Services. The examiner noted that the Veteran was initially defensive during the interview, but as it progressed, he became friendly and cooperative. He was alert and oriented times three. There was no major speech disorder. His thought processes were coherent; there was no tangentiality or looseness of associations. His affect was full and appropriate as to content of the discussion. His mood was rather irritable, and at times sad, but generally cooperative. There was no delusional thinking, hallucinations, suicidal ideations, or homicidal ideations. His memory for recent and remote events, comprehension, abstract thinking, and ability to do calculations, were judged to be intact and average. Axis I diagnoses were chronic PTSD, and alcohol and substance abuse in remission. A GAF score of 55 was assigned. The examiner also noted that the Veteran was properly dressed, had good hygiene, did daily living activities, and was able to drive. He reported living with his current spouse and their daughter. According to an April 2010 VA mental health outpatient initial assessment note, the Veteran was fairly groomed and casually attired. He was cooperative and pleasant. His speech was normal in rate, rhythm, amount, and volume. There was no agitation or retardation. He was calm, and his eye contact was fair. His mood was euthymic. His affect was full, stable, mood-congruent, and appropriate. His thought process was noted as linear and goal-directed. The Veteran denied any suicidal or homicidal ideations. There were no delusions or hallucinations. The examiner noted the Veteran's insight as fair to good, and his judgment as fair. A diagnosis of chronic PTSD was continued; rule out history of marijuana and cocaine abuse in remission. A GAF score of 70 was assigned. Although reporting some psychosocial stressors (marriage conflict and life in the U.S.), the examiner felt the Veteran was overall stable. During the May 2011 hearing, the Veteran testified that he had held back to a certain point when examined in February 2010, including insofar as the reporting of his PTSD symptoms and their affect on his life. He maintained he met the criteria for a higher rating for this condition. Also during the hearing, his spouse submitted a statement in which she attested that his PTSD had strained their marriage over the past ten years. She stated that he had been verbally and mentally abusive, withdrawn, and isolative. In March 2012, following and as a result of the Board's remand of this claim, the Veteran underwent a VA social work and industrial survey interview by a licensed clinical social worker. The Veteran was raised in the Virgin Islands. He has 12 children and has been married twice. His highest paid position was working as a full-time music teacher and the head of the music department at a middle school in the Virgin Islands. He grew up in the community in which his job/school was located and felt that he was well-respected in his position. He loved his job and was saddened when he was forced to leave on account of his psychiatric disability. He had worked at the school for 20 years and had no periods of unemployment. During the evaluation, the examiner noted the Veteran was correctly oriented to person, place, time and purpose. His affect was broad. His speech was clear. He became tangential at times, but was easily refocused. He was cooperative and friendly. He was not guarded or withdrawn. He retained good eye contact during the evaluation. He felt that he had very little energy and expressed no interest in his former hobbies or activities. The examiner assigned a GAF score of 60 and indicated the Veteran had poor social and family relationships and was no longer able to play his flute or engage in previously enjoyable activities. It was also noted that he was hypervigilant; he reacted to any violence in the media, loud noises, fireworks, and the like. He also suffered from flashbacks. He was chronically depressed, anxious, and irritable. His thoughts were frequently illogical, tangential, and paranoid. He admitted to impaired impulse control resulting in him engaging in unprovoked, verbally-abusive behavior. He was mostly housebound to avoid social interaction or stressful situations. His social interactions were limited to his spouse, daughter, and staff at the VA where he receives treatment. He most recently underwent a VA mental health compensation examination in August 2012 by a psychologist to reassess the severity of the PTSD, also following and as a result of the Board's remand of this claim. His PTSD symptoms included anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The examiner noted that the Veteran was a reliable historian. His orientation was within normal limits. His behavior, appearance, and hygiene were appropriate. He maintained good eye contact during the interview. His affect and mood were anxious. His communication was within normal limits, as was his speech. There was no evidence of paranoia or loose associations. There did not appear to be impaired impulse control. There were no reports of delusions or hallucinations and none were observed. Obsessional rituals, suicidal ideations, and homicidal ideations were absent. Thought processes were appropriate. He did not have slowness of thought nor did he appear confused. His judgment was not impaired. He indicated that he had been forgetting names, directions, and recent events. He also reported forgetting to complete tasks. The examiner noted that the Veteran's psychiatric disability presented primarily as anxiety symptoms, which continue to cause difficulty in functioning appropriately in the occupational arena. The examiner stated the Veteran did not endorse symptoms associated with depressive features, although he remained isolative and felt uncomfortable in crowds. He instead focused on his relationship with his young daughter. The examiner stated further that the Veteran had made a satisfactory adjustment since his last VA compensation examination to the extent that there were no gross indications of behavior control problems, subjective unhappiness, or significant family dysfunction. The examiner felt the Veteran's PTSD symptoms continued to have a moderate effect on his social and occupational functioning based on his report. Axis I diagnoses were chronic PTSD and polysubstance dependence. A GAF score of 55 was assigned. In summarizing his findings, the examiner clarified that the Veteran's current symptoms are solely attributable to his diagnosis of PTSD. The examiner felt that the Veteran's psychiatric symptoms are unrelated to his prior substance abuse, noting that he reportedly had not used illegal substances since 1998, so for several years. The examiner concluded the Veteran's PTSD causes occupational and social impairment with reduced reliability and productivity. Having reviewed the complete record, the Board finds that an initial rating higher than 70 percent for the PTSD is not warranted at anytime during the appeal period. In this regard, the evidence does not show the Veteran's PTSD causes total occupational and social impairment. Although there was evidence of paranoia during the 2004 VA examination and some thought impairment noted during the March 2012 social work and industrial survey, the remaining medical evidence, including the most recent August 2012 VA compensation examination report, demonstrates the Veteran has exhibited a clear and logical thought process. Overall, he has not exhibited any gross impairment in thought processes or communication. Although described as somewhat isolative and withdrawn, he still communicates effectively with his spouse, daughter, and the staff of the VA medical center where he is routinely treated. Additionally, he has denied suffering from persistent delusions or hallucinations, and none have been seen on examination. His behavior has not been grossly inappropriate and he has not been in persistent danger of hurting himself or others. Further, he has been able to perform activities of daily living (ADLs), including maintenance of minimal personal hygiene. Indeed, he has consistently presented to VA and private examinations with appropriate dress and hygiene. Also, he has been consistently oriented to time, person, place, and situation, so correctly in all spheres. Some short- and long-term memory loss, such as forgetting directions or to complete tasks, was noted during the most recent VA examination in August 2012. That notwithstanding, there is no suggestion he has forgotten his own name or the names of his close relatives. Overall, then, the evidence reflects that he is generally functioning, albeit with some, but not total, occupational and social impairment. He therefore is not entitled to a higher and maximum 100 percent schedular rating. In deciding this claim, the Board also has considered his GAF scores ranging from 55-70 during the appeal period. However, these scores, even the worst of them, are indicative of only relatively mild to at most moderate impairment. Although not entirely determinative of the rating to be assigned, his assigned GAF scores do not help to support his claim for a higher rating. In addition to the medical evidence, the Board has considered the statements and personal assertions provided by him, his spouse, friends, fellow service member, and former co-workers. They, as laypersons, are competent to report on that as to which they have personal knowledge, such as observing his anger or withdrawal. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). However, the extent and severity of his symptoms and, more importantly, his consequent disability, are judged in relation to the applicable rating criteria and with consideration of the other evidence in the file, including the objective clinical findings that have been noted in the course of his ongoing evaluation and treatment, such as when examined for VA compensation purposes and when seen at other times for group therapy. So this determination is multi-factorial, not just predicated on the lay statements of record and hearing testimony, rather, all of the relevant medical and other evidence. The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The lay statements are therefore outweighed by the medical findings of record, especially those of the VA compensation examiners charged with addressing the relevant rating criteria, since their findings do not support the conclusion that the Veteran's PTSD has caused total occupational and social impairment for a higher and maximum 100 percent initial rating. The Board bases this determination partly on the notion that, if in fact his symptoms were as severe as alleged, including insofar as their frequency and duration, they would have been evident when examined, but they were not, certainly not to the level required for a higher initial rating of 100 percent. Overall, he does not exhibit the type, frequency and severity of symptoms required for a higher initial rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding that the factors listed in the rating formula are examples of conditions that warrant a particular rating and are used to help differentiate between the different evaluation levels). And because his PTSD has never been more than 70 percent disabling at any point since the filing of this claim, the Board cannot "stage" this rating either. Fenderson, 12 Vet. App at 125-26. For these reasons and bases discussed, the preponderance of the evidence is against his claim for a higher initial rating, the "benefit-of-the-doubt" rule is inapplicable, and the Board must deny his claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Finally, in exceptional cases an extra-schedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his 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 extra-schedular 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). Here, however, the schedular rating criteria contemplate the extent and severity of the Veteran's PTSD symptoms, which primarily consist of his anxiety, irritability and anger, sleep difficulty, and occupational/social impairment. The record shows further that he retired in 2000, but has either been in receipt of a TDIU or a 100 percent schedular rating since the filing of this claim in September 2001. The Board, then, is not obligated to refer this claim to the Under Secretary for Benefits or to the Director of Compensation and Pension (C&P) Service for extra-schedular consideration. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER The claim of entitlement to an initial rating higher than 70 percent for the PTSD is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs