Citation Nr: 1301976 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-33 896 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) and depression, for the period from December 1, 2006 through May 5, 2009, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b). 2. Entitlement to a total rating based on individual unemployability (TDIU) prior to August 28, 2008. ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to September 1971, to include combat service in the Republic of Vietnam. The Veteran was awarded the Bronze Star Medal with valor, multiple Purple Heart Medals, the Combat Infantryman's Badge, and paratrooper qualification. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2006 rating decision in which the RO, inter alia, granted service connection and assigned an initial 10 percent rating for PTSD, effective June 30, 2005. In October 2006, the Veteran filed a notice of disagreement (NOD) with the initial rating assigned for PTSD. In a statement of the case (SOC) issued in June 2007, the RO awarded a 30 percent rating for PTSD, effective September 22, 2006. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2007. During the pendency of the appeal, in August 2008, the RO awarded a 70 percent rating for PTSD, effective December 1, 2006. In July 2009, the RO awarded a TDIU, effective August 28, 2008. In May 2011, the Board characterized the appeal as encompassing staged ratings for the Veteran's PTSD (initially rated as 30 percent disabling prior to December 1, 2006, and as 70 percent disabling from that date), as well as the matter of the Veteran's entitlement to a TDIU prior to August 28, 2008, consistent with Fenderson v. West, 12 Vet. App. 119, 126 (1999) and AB v. Brown, 6 Vet. App. 35, 38 (1993). [Parenthetically, the Board notes that, although not explicitly cited, the Board's consideration of the TDIU as a component of the higher rating claims is consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009).]. In its May 2011 decision, the Board awarded an initial, 50 percent rating for PTSD for the period prior to December 1, 2006 (from the June 30, 2005 effective date of the award of service connection through November 30, 2006). At that time, the Board also remanded the claims for a rating in excess of 70 percent from December 1, 2006, and for TDIU prior to August 28, 2008, to the RO for further action, to include development of the evidence. After accomplishing further action, in September 2011, the RO continued to deny a TDIU prior to August 28, 2008. However, in February 2012, the RO awarded a 100 percent rating for PTSD, effective May 6, 2009; as reflected in February 2012 supplemental SOC (SSOC), the RO continued to deny a rating in excess of 70 percent for the relevant period prior to that date. In view of the RO's actions, and consistent with Rice, Fenderson, and AB, the matters remaining on appeal are those set forth on the title page. As noted in the prior remand, the Veteran previously was represented by the North Carolina Division of Veterans Affairs. In correspondence in November 2010, before certification of the appeal to the Board, the North Carolina Division of Veterans Affairs revoked its power of attorney. As the Veteran has not obtained another representative, the Board continues to recognize the Veteran as proceeding pro se in this appeal. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. For the period from December 1, 2006 through May 5, 2009, the Veteran's psychiatric symptoms primarily included nightmares, intrusive thoughts, hypervigilance, lack of anger control, strained or limited relationships with family and friends, frequent panic attacks, aggressive behavior with violence, and mild memory dysfunction; collectively, these symptoms are indicative of no more than occupational and social impairment with deficiencies in most areas. 3. For the period from June 30, 2005 through November 30, 2006, the Veteran had the following service-connected disabilities: PTSD rated as 50 percent disabling; bilateral degenerative joint disease of the knees, each rated as 10 percent disabling; and four scars rated as noncompensable. The combined rating was 60 percent. 4. For the period from December 1, 2006 through August 27, 2008, the Veteran's PTSD rating was increased to 70 percent, with no changes in the other disabilities. The combined rating was 80 percent. 5. As of December 1, 2006, competent, probative evidence is at least evenly balanced on the question of whether the nature and severity of the Veteran's service-connected disabilities-in particular, his PTSD with depression-prevent him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD with depression, for the period from December 1, 2006 through May 5, 2009, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.125, 4.130, Diagnostic Code 9411 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, as of December 1, 2006, the criteria for a TDIU due to PTSD with depression are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an August 2005 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate what was then a claim for service connection for PTSD. After the award of a service connection, and the Veteran's disagreement with the initial rating assigned, the June 2007 SOC and a May 2008 letter set forth the criteria for ratings for PTSD (which, in part, suffices for Dingess/Hartman). A March 2006 letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman After issuance of the post-rating notice identified above, and various opportunities for the Veteran to respond, a November 2011 SOC and the February 2012 SSOC reflect readjudication of the claims. Hence, the Veteran is not shown to be prejudiced by the timing of the notices. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records. Pertinent medical evidence associated with the claims file consists of service, VA treatment records, Social Security Administration records, and the report of multiple VA examinations. Also of record and considered in connection with this matter are various written documents provided by the Veteran. The Board finds that no additional RO action to further develop the record in connection with either claim, prior to appellate consideration, is required. In sum, VA's duties to notify and assist have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis A. Higher Rating for PTSD Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. The 70 percent rating for the Veteran's PTSD for the period under consideration has been assigned pursuant to Diagnostic Code 9411. However, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. Under the formula, a 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. A 100 percent rating is assigned for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) explains GAF as a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." A GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). As reflected in the evidence summary, below, during the period in question, the Veteran was assigned GAF scores ranging from 31 to 55. According to DSM-IV, a GAF score ranging from 31 to 40 is indicative of some impairment in reality testing or communication (e.g., speech at times illogical, obscure or irrelevant) or major impairment in several areas, such as work, school, , family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score from 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 51 to 60 reflect 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). At the outset, the Board notes that, in addition to a service-connected PTSD, the medical evidence reflects a diagnosis of depressive disorder, not otherwise specified (NOS). Where it is not possible to distinguish the effects of nonunion-service-connected conditions from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). As there is no indication here that it is possible to distinguish the symptoms from the Veteran's psychiatric disorders, in this case, the RO has characterized the Veteran's service-connected psychiatric disability to include depression, and the Board has considered all of his psychiatric symptoms in evaluating his service-connected PTSD. Although only the rating for the period from December 1, 2006 through May 5, 2009 is currently under consideration, the Board will briefly review evidence relevant to the Veteran's disability prior to December 2006. Service personnel records showed that the Veteran served in Vietnam from December 1966 to August 1967 when he was evacuated for treatment of a non-combat injury. He also served in Vietnam from February 1968 to February 1969. His military occupation was supply specialist and armorer, and the records indicate that he received combat awards. Service treatment records including the reported a September 1971 discharge physical examination are silent for any psychiatric symptoms, diagnoses or treatment. In correspondence and claims documents dated in August 2008 and March 2009, the Veteran reported that he worked as a truck and forklift driver for vehicle tire companies from 1973 to 2002. He indicated that, in May 1977, he sustained physical injuries in his workplace and underwent psychological therapy from a private physician from March 1978 to October 1979. The physician did not note the causes or nature of the symptoms for which he provided treatment. The Veteran was awarded disability benefits by the Social Security Administration effective in March 2002. Records of the associated physical and mental health examinations and adjudication have been associated with the claims file. The records showed that the award was for multiple degenerative spinal disc and joint disease. In a September 2002 mental health evaluation record, a psychologist noted the Veteran's report of no symptoms of depression or problems with social interaction. The psychologist noted no mental health impairment. VA treatment records dated from May 2005 through October 2005 reflect that in May 2005, the Veteran received VA emergency room care and reported suicidal and homicidal ideation. The Veteran presented to the emergency room as agitated, boisterous, loud, and tearful when discussing his experiences in Vietnam. The Veteran described nightmares, flashbacks, sleep disturbances, isolation, hyperarousal, and hypervigilance. He also complained of irritability, anger, and depression. The Veteran noted that he had past suicidal tendencies after being on Zoloft as prescribed by his private primary care physician but denied any past attempts or current plan. He admitted that he really just wanted to get registered and get treatment at VA and was not admitted for inpatient care. The Veteran denied any present homicidal intent, but also noted that he bought 100 acres of farmland to keep himself away from everyone. The Veteran was diagnosed with probable PTSD and possible mood disorder. His symptoms were noted as "severe" but the examiner assigned a GAF score of 52. In July 2005, the Veteran reported that his psychotropic medication had resulted in reduced angry outbursts and somewhat reduced anxiety. It was noted that sleep continued to be extremely problematic, fragmented, and rarely totaling more than three hours per night. Emotionally, the Veteran was plagued by extreme feelings of guilt for his actions in Vietnam. The Veteran denied suicidal and homicidal ideation. He was diagnosed with PTSD and assigned a GAF score of 51. In September and October 2005, the Veteran denied visual and auditory hallucinations as well as suicidal and homicidal ideation but he reported nightmares and intrusive memories. He remained extremely guilty and engaged in self-destructive behavior. The Veteran was diagnosed with PTSD and assigned a GAF score of 51 on both evaluations. In connection with a psychotherapy appointment in July 2006, a psychologist diagnosed PTSD with depressive disorder. The psychologist noted that the Veteran's persistent hyperarousal led to angry outbursts in response to even benign external cues. The Veteran was noted to have "serious" impairment in social and occupational functioning. He had to end participation in group therapy because of his wife's illness. On VA examination in August 2006, a psychiatrist noted the Veteran's reports of more severe PTSD symptoms since his retirement from work due to his arthritis. The Veteran reported trouble with sleep, depression, anxiety, temper, and isolation. He reported nightmares every night with intrusive thoughts, hypervigilance, exaggerated startle response, avoidance of military topics, sporadic loss of concentration, sadness, and decreased energy but no suicide attempts or panic attacks. The Veteran lived with his wife and had a close relationship with his children but had few friends. He was able to perform household chores and all activities of daily living. The Veteran reported that he pursued a hobby of repairing cars and motorcycles and attended church occasionally. On mental status examination, the psychiatrist noted that the Veteran was alert, cooperative, and casually but appropriately dressed. There were no loosened associations of flight of ideas, bizarre movements or tics, homicidal or suicidal ideation or intent, delusions, hallucinations, ideas of reference, or suspiciousness. The Veteran's mood was calm, his affect was appropriate and he was oriented to person, place, and time. His memory, both remote and recent, appeared to be adequate. Insight, judgment, and intellectual capacity were adequate. The psychiatrist diagnosed PTSD and assigned a GAF score of 55. The Veteran sought private psychiatric care starting with an initial evaluation on December 1, 2006. The psychiatrist noted the Veteran's reports of intense combat action in Vietnam and feelings of survivor's guilt, social isolation, and lack of anger control since service that became significantly more severe after he retired from employment. The Veteran reported that he physically assaulted his spouse and coworkers on several occasions although the record does not contain any evidence of actual injury or legal action. The Veteran remained married. On examination, the psychiatrist noted that the Veteran was unkempt and disheveled and was distressed by discussion of his military experiences. There were no delusions or hallucinations. The Veteran was talkative with some tangential thinking. He was depressed and anxious but without suicidal or homicidal ideations. Memory was fair with very good insight and judgment. The psychiatrist assigned a GAF of 32, indicating major impairment of occupational and social activities, thinking, and mood. This score also may be associated with impaired reality testing or communications, but these features were not noted by the psychiatrist in the narrative of his examination. Records of ongoing clinical care by this psychiatrist at intervals of approximately three to six months through December 2009 are of record and show similar symptoms with occasional reports by the Veteran of some improvement with medication. The Veteran remained married but with continued strain manifested by lack of anger control. The psychiatrist did not assign updated GAF scores. In July 2007, the Veteran's attending psychiatrist noted similar symptoms and continued prescription medication. In a brief report, the psychiatrist assigned a GAF score of 55. In May 2008, a VA clinical psychologist noted a review of the claims file including the service records and records of psychiatric therapy and medication since 2005. The Veteran reported continued strained family relationships but with some improvement with medication. The Veteran reported solo trips to the woods for several days, irritation with neighbors, four panic attacks in public in the last year, and an argument and assault on his father. The psychologist noted that the Veteran's current psychosocial function was poor. The Veteran reported suicidal ideations but with no plan. His appearance was unkempt with an irritable mood, agitation, rambling thought process, and preoccupation with one or two topics but no memory deficits. He continued to report significant loss of sleep, nightmares, intrusive thoughts, difficulty with concentration and anger control. The psychologist did not consider the Veteran's impairment to be total. He noted that the Veteran was able to manage his financial affairs. Despite his agitation and depressed mood, the Veteran was not disoriented, did not display flawed thinking, and was able to maintain some strained family relationships. The psychologist diagnosed PTSD and depression and noted that the symptoms were overlapping and mutually aggravating. He assigned a GAF score of 35. In May 2009, a VA staff psychiatrist noted a review of the claims file and performed a mental health review examination. The psychiatrist noted all the same symptoms but with increased severity including frequent panic attacks and severe insomnia. The Veteran was arrested on one occasion for assault and left home for days for to isolation outdoors and away from others including his family. He reported entertaining homicidal thoughts and assaulted a neighbor while brandishing a firearm. The psychiatrist concluded that the Veteran was mentally competent to handle his financial affairs with only a mild impact on most daily personal and household activities but that near total social isolation and lack of anger control precluded all forms of employment, severely impaired recreational activities, and moderately impaired driving and traveling. The psychiatrist assigned a GAF score of 31. In February 2011, the Veteran underwent a VA examination to determine the need for aid and attendance of another person. A physician noted that the Veteran no longer drove an automobile and required assistance from his spouse for dressing, washing, and meal preparation. The physician noted that the spouse handled all financial matters. The physician did not indicate whether the assistance was necessary for physical or mental health reasons. In May 2011, the RO proposed a determination of incompetency. In correspondence in June 2011, the Veteran noted that he was able to manage his affairs and was "far from incompetency." The RO found the Veteran competent in September 2011. Pursuant to the Board's May 2011 remand, the RO obtained and associated with the claims file additional VA outpatient treatment records, and the Veteran submitted additional records of private psychiatric care (as noted above) through December 2009. The additional VA outpatient records from 2006 to 2011 are consistent with the examination reports discussed above and show on-going psychiatric medication management. Considering the above-cited evidence in light of the applicable criteria, the Board finds that no more than the 70 percent rating assigned for the Veteran's PTSD is warranted for the pertinent period under consideration. Collectively, the medical evidence reflects that, during this period, the Veteran experienced the entire range of symptoms of PTSD and depression noted in DSM-IV as associated with these disorders. He suffered from nightmares, intrusive thoughts, hypervigilance, and frequent panic attacks; he had mild memory dysfunction. He experienced strained family relationships; severe social isolation; suicidal ideation panic and depressed mood affecting ability to function independently, appropriately and effectively; impaired impulse control; unprovoked irritability with violence; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships outside the family. Thus, as evidenced by both VA and private mental health examiners in narrative observations, clinical findings, and even in the lowest assigned GAFs of 31 to 35, for the period in question, the Veteran experienced a level of psychiatric impairment marked by the occupational and social impairment with deficiencies in most areas, the level of impairment consistent with the assigned70 percent rating. At no point during the period in question did the Veteran's overall psychiatric symptomatology meet the criteria for a 100 percent schedular rating. Indeed, the Veteran was not shown to display such symptoms as gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior involving injury or legal action; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Reports of personal assaults and violence did not arise until May 6, 2000 when an examiner noted significant worsening of symptoms. During the period in question, the Veteran was able to drive an automobile. He communicated articulately in writing and in interviews, understood the nature of his disorders, and was able to manage his financial affairs. He was also able to perform the activities of daily living and maintained some family relationships even if strained. Accordingly, when considering the complete picture of the Veteran's psychiatric symptomatology, the Board finds that, during the period in question, the Veteran's psychiatric impairment more nearly approximated the criteria for a 70 percent rating. See 38 C.F.R. § 4.7. The criteria for the maximum, 100 percent rating simply are not met at any pertinent point. As a final point, the Board emphasizes that, in analyzing this claim, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant a higher rating for PTSD. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The above determinations are based upon consideration of pertinent provisions of VA's rating schedule. The Board also finds that at no point during the period under consideration did the Veteran's service-connected PTSD with depression reflect so exceptional or so unusual a disability picture as to warrant the assignment of a 100 percent rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If it is determined that this is so, the second step of the inquiry requires a determination of "whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires referral of the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. In this case, the Board finds that schedular criteria are adequate to rate the disability under consideration at all points pertinent to the relevant period under consideration. As evidenced by the above-noted discussion, the rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment, should the disability worsen-as it did when the May 2009 VA examiner noted an increase in severity of symptoms and impairment that met the criteria for a 100 percent schedular rating. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that there is no basis for staged rating of the Veteran's PTSD with depression during the period from December 1, 2006 through May 5, 2009, and that the claim for higher rating for this period must be denied. In reaching this conclusion, the Board considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. TDIU prior to August 28, 2008 Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, a total rating, on an extra-schedular basis, may nonetheless be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities (pursuant to 38 C.F.R. § 4.16(b)). The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2009); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. Service connection was in effect for the following disabilities at the noted ratings for the period from June 30, 2005 through November 30, 2006: PTSD rated as 50 percent disabling; degenerative joint disease of the right and left knees, each rated as 10 percent disabling; and four scars rated as noncompensable. The combined rating was 60 percent. For the period from December 1, 2006 through August 27, 2008, the Veteran's PTSD rating was increased to 70 percent with no changes in the other disabilities. The combined rating was 80 percent. Therefore, the Veteran met the percentage requirements for award of a schedular TDIU, set forth in 38 C.F.R. § 4.16(a) as of December 1, 2006. Pertinent evidence of record reflects that the Social Security Administration found the Veteran disabled and he retired in 2003 because of multiple spinal disc and joint degenerative disease. From the date of initial service connection in June 2005 to December 1, 2006, the Veteran's mental health and bilateral knee disabilities alone imposed a moderate but not total level of occupational impairment. The Veteran had many recognized symptoms of PTSD with social isolation, difficulties with anger control, and maintaining relationships with others. He was able to perform household chores, all activities of daily living including operating an automobile, pursued a hobby of repairing cars and motorcycles, and attended church occasionally. The Veteran was alert and cooperative during interviews and was appropriately groomed and dressed. There were no loosened associations of flight of ideas, homicidal or suicidal ideation or intent, delusions, hallucinations, ideas of reference, or suspiciousness. His mood was calm, and he was oriented to person, place, and time. His memory, both remote and recent, appeared was adequate. Insight, judgment, and intellectual capacity were adequate. Several clinicians assigned a GAF scores from 51 to 55 indicating moderate difficulty in occupational functioning. Notably, the Veteran did not at that time contend that his retirement and inability to work was due solely to PTSD, depression, and knee arthritis. Considering all pertinent evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a TDIU due to PTSD with depression is warranted from December 1, 2006, but not earlier. As discussed above, the claims for higher ratings for PTSD with depression were then on appeal, and the matter of the Veteran's entitlement to a TDIU due to psychiatric disability is considered a component of the claims for higher rating. See Rice, 22 Vet. App. at 447. As such, and on these facts, the effective date for the award of a TDIU is not controlled exclusively by the date of receipt of a formal claim for that benefit in August 2008. As of December 1, 2006, the Veteran's combined disabilities met the percentage requirements of 38 C.F.R. § 4.16(a) for a schedular award of a TDIU, as his rating for PTSD was increased to 70 percent. The evidence of record pertinent to this time frame showed a significant increase in the severity of the Veteran's symptoms, particularly his social isolation and lack of anger control. Both the private psychiatrist in December 2006 and the VA psychologist in May 2008 assigned GAF scores in the low 30s indicating major impairment of occupational function, thinking, and mood. Notably, the Veteran reported frequent panic attacks and specific instances of aggressive and occasionally violent behavior that would not be tolerated by any employer in an organized, group work environment. Therefore, the Board concludes that, from December 1, 2006, but no earlier, the evidence of record that supports an increase to a 70 percent rating for the period prior to August 28, 2008, also tends to demonstrate that the Veteran's occupational impairment precluded all forms of substantially gainful employment. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53-56. The Board has favorably applied the benefit-of-the doubt doctrine in determining that the criteria for a TDIU due to PTSD with depression is warranted from December 1, 2006, but finds that the preponderance of the evidence is against award of a TDIU prior to that date. ORDER For the period from December 1, 2006 through May 5, 2009, a rating in excess of 70 percent for PTSD with depression, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b), is denied. A TDIU due PTSD with depression, from December 1, 2006, is granted, subject to the legal authority governing the payment of compensation benefits. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs