Citation Nr: 1304411 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-00 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating higher than 50 percent for major depressive disorder, including considering whether the Veteran has additional psychiatric disability deserving of a separate rating or along with this rating. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from April 1975 to April 1985. This appeal to the Board of Veterans' Appeals (Board) is from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a rating greater than 50 percent for her service-connected major depressive disorder and entitlement to a TDIU. The RO had first awarded her service connection for this major depressive disorder and had assigned an initial disability rating and effective date for it in an earlier March 2006 rating decision. In a June 2006 letter, the RO had informed her that her May 2006 claim of entitlement to a TDIU also had raised claims for increased compensation for all service-connected disabilities related to her purported inability to obtain and retain substantially gainful employment, so including a claim for a higher rating for her service-connected major depressive disorder. As the RO received new and material evidence prior to the expiration of the appeal period following that March 2006 rating decision, however, the assignment of the Veteran's initial rating pursuant to the grant of service-connection for her depression was not finally adjudicated by the RO until May 2007, and the June 2006 notice letter was in error as the assignment of the initial rating for service-connected depression was still pending. 38 C.F.R. § 3.156(b) (2012); see, e.g., Muehl v. West, 13 Vet. App. 159, 161-62 (1999); see generally Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that a later rating decision must refer back to the original claim where new and material evidence is received before the decision becomes final to preserve the effective date and applicable rating provisions). Therefore, the claim on appeal before the Board is not a claim for an increased rating, in the traditional sense, but instead an original claim placed in appellate status by disagreement with the initial rating assigned. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Additionally, the scope of the Veteran's appeal of the initial rating assigned for her service-connected depression includes a claim for service connection for PTSD. In her November 2009 appeal, she alleged that her major depressive disorder is due to PTSD caused by military sexual trauma (MST), documented in the mental health treatment records reviewed by VA, and, consequently, she had also "applied for" benefits for PTSD due to MST, and not just depression. Review of the record shows that her diagnosis was changed from major depressive disorder (MDD) to "PTSD, Chronic, Serious; MDD, Recurrent; Severe" in August 2005 as a result of a VA PTSD evaluation. VA mental health treatment records show a change of diagnosis to "major depression...+MST" thereafter. If the diagnosis of a mental disorder is changed, the rating agency shall determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. 38 C.F.R. § 4.125(b) (2012). If it is not clear from the available records what the change of diagnosis represents, the rating agency shall return the report to the examiner for a determination. Id. This section may apply, for example, if a VA examiner diagnoses a new mental condition that is different from prior diagnoses in the claims file. The U. S. Court of Appeals for Veterans' Claims (Court/CAVC) has recently clarified the meaning of the terms frequently used to determine the scope of a claim properly on appeal before the Board. Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). A "claim" seeks entitlement to a benefit, a "theory" is a means of establishing entitlement to the benefit sought, and a "matter" is the entire subject under consideration. Id. All theories pertaining to the same benefit for the same disability are part of the same claim. Id.; but see Jarrell v. Nicholson, 20 Vet. App. 326, 332 (2006) (distinguishing requests for revision of a decision on the grounds of clear and unmistakable error (CUE) under 38 U.S.C.A. § 5109(a) (West 2002)). As the meaning of the term encompasses the entire subject under consideration by the adjudicatory body, the scope of the matter may be different at different stages of adjudication. Hillyard, 24 Vet. App. at 355. Accordingly, the Board has jurisdiction to adjudicate the merits of different theories, or questions, on a single matter because the Veteran's appeal properly brings all means of establishing entitlement to the benefit sought before the Board. Godfrey v. Brown, 7 Vet. App. 398, 409 (1995); see also Hillyard, 24 Vet. App. at 355. However, a Notice of Disagreement (NOD) and Substantive Appeal (VA Form 9 or equivalent statement) filed by the Veteran cannot confer jurisdiction on the Board to review claims that are wholly separate and distinct from the claim presented to and adjudicated by the RO. Jarrell, 20 Vet. App. at 332; Godfrey, 7 Vet. App. at 409. As already alluded to, with regard to claims for benefits for psychiatric disorders, 38 C.F.R. § 4.125(b) cautions that a change in the diagnosis of a mental disorder may represent a progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. Accordingly, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court found that the scope of a claim for PTSD benefits included other diagnosed mental disorders as a Veteran does not file a claim to receive benefits for a particular diagnosis, but for the affliction suffered. Consequently, a single claim for disability compensation can encompass more than one condition. Id.; see also Young, 25 Vet. App. at 202 (holding that the scope of a PTSD claim encompassed a claim for benefits for a generalized anxiety disorder where the evidence developed during the processing of the claim indicated that the symptoms alleged were caused by the generalized anxiety disorder and not PTSD). The Court explained that treating separate diagnoses as separate claims where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits disadvantage the Veteran by unnecessarily multiplying the procedural requirements involved in filing, developing, and adjudicating a claim, as well as risking an erroneous assignment of a later effective date. Clemons, 23 Vet. App. at 8; but see Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008) (treating separate diagnoses as separate claims in the context of a petition to reopen a previously denied claim). Critically, there would be a significant risk that "the nature of the appellant's current condition may never be properly adjudicated by the Secretary," as piecemeal adjudication of separate diagnoses that may relate to same disability may not properly account for the possibility that "multiple diagnoses may represent subjective differences of opinions of examiners, rather than multiple conditions." Id. at 8-9 (also explaining that this holding does apply where the original diagnosis was the subject of a final rating decision that pre-dated the new diagnosis); see also Ephraim v. Brown, 82 F.3d 399, 401-02 (Fed. Cir. 1996) (holding that a claim for service connection for PTSD was separate from an appeal of a rating reduction for depressive neuroses where PTSD was not diagnosed prior to the date the rating issue was brought within the Court's jurisdiction by the filing of the NOD). Here, the August 2005 VA PTSD evaluation report showing a diagnosis of PTSD was associated with the evidence of record prior to the issuance of any rating decision concerning the Veteran's psychiatric disability. See Ephraim, 82 F.3d at 401-02; Clemons, 23 Vet. App. at 9. Furthermore, in determining the scope of the issue on appeal, due consideration must be given to the distinction between an original claim for benefits for a psychiatric disorder placed in appellate status by the Veteran's disagreement with the initial rating assigned and a new claim for an increased rating. Fenderson, 12 Vet. App. at 125-25. Lastly, the Veteran's assertion that she suffers from depression due to PTSD cannot be interpreted in context as expressing any intent to file a new claim for benefits; rather, this statement expresses her clarification of the theories justifying her claim for a higher initial rating for her service-connected psychiatric disorder, the matter before the Board. Hillyard, 24 Vet. App. at 355; Godfrey, 7 Vet. App. at 409. Accordingly, the Board finds that a claim for service connection for PTSD is part of the Veteran's appeal of the initial rating assigned for her service-connected psychiatric disorder, and the Board has proper jurisdiction over that claim. Accordingly, the issues on appeal have been recharacterized as reflected on the title page. Once the Board has jurisdiction over a claim, it has the authority to address all issues related to that claim, even those not previously decided by the RO. Young, 25 Vet. App. at 203; Jarrell, 20 Vet. App. at 332; Bernard v. Brown, 4 Vet. App. 384, 392 (1993) (citing 38 U.S.C.A. § 7104(a)). To exercise the authority to address an issue not previously addressed by an RO in the first instance, the Board must either secure a waiver from the claimant or otherwise determine that no prejudice to the claimant would result from proceeding to adjudicate the issue. Jarrell, 20 Vet. App. at 332; Bernard, 4 Vet. App. at 394. Otherwise, remand for the RO to decide the question in the first instance is appropriate. Id. In this decision, the Board addresses the previously unadjudicated issue of entitlement to service connection for PTSD, and, as discussed below, grants the benefit sought pursuant to this service-connection claim in full. Therefore, no prejudice can result to the Veteran from the Board's adjudication of a claim for service connection for PTSD as part of her appeal for a higher rating for her service-connected psychiatric disorder. However, the assignment of the initial disability rating for her service-connected psychiatric disorder, diagnosed as depression and PTSD, resultantly cannot be fairly adjudicated without prejudice to her prior to additional evidentiary development on the current severity of her psychiatric disability and the symptomatology attributable to each diagnosis. See Jarrell, 20 Vet. App. at 332; Bernard, 4 Vet. App. at 394. Therefore, her claim of entitlement to an initial rating higher than 50 percent for her service-connected psychiatric disability, diagnosed as PTSD and depression, including whether the assignment of separate ratings is warranted, is addressed in the REMAND portion of the decision below. The Board is REMANDING this claim to the RO via the Appeals Management Center (AMC) for development in accordance with the remand directives below. FINDINGS OF FACT 1. The evidence corroborates the Veteran's claimed in-service personal assault and relates this assault to a current diagnosis of PTSD. 2. The Veteran is service connected for a psychiatric disorder, and her psychiatric disorder has been variously diagnosed as PTSD and depression, currently rated as 50-percent disabling. Service connection also is in effect for ankylosis of her left wrist, rated 30-percent disabling; a scar on her left wrist, rated 10-percent disabling, and allergic rhinitis with sinusitis, rated 0 percent (noncompensable). Her combined disability rating is 70 percent. 3. Her service-connected disabilities preclude her from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The Veteran has PTSD on account of a traumatic event ("stressor"), so injury, during her military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. The criteria also are met for a TDIU. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. The Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application, unless there is no reasonable possibility that such notification or assistance could result in substantiation of the claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2012). In this decision, the Board is granting service connection for PTSD and a TDIU. This, then, represents a complete grant of the benefits sought on appeal with regards to these claims. Thus, any deficiency in VA's compliance with its duty to notify and assist obligations, even if shown to have occurred, ultimately would be inconsequential and, therefore, at most amount to nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102. See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (clarifying that VCAA notice and assistance errors, even if shown to have occurred, 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 not only establishing error but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim). There is no such possibility in this instance, so further discussion of VA's responsibilities is unnecessary. B. Review of the Evidence When evaluating a claim for disability benefits, VA must give due consideration to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Generally, the Board should determine whether the Veteran's particular disability is the type of disability for which lay evidence is competent, and, if so, weigh that evidence against the other evidence of record in making its determinations. Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011); see, e.g. Davidson, 581 F.3d at 1316 (holding that lay evidence can be competent and sufficient to establish a diagnosis if a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional; Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding that a lay person is competent to testify to chronicity of symptoms in service and continuity of symptoms after service questions). Once evidence is determined to be competent, the Board must assess its credibility and weigh its probative value, accounting for evidence which it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the Veteran. Washington v. Nicholson, 19 Vet. App. 362, 366-67 (2005); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (listing facial plausibility, internal consistency, consistency with the other evidence of record, the demeanor of the witness if oral testimony is given, self-interest, and possible bias as factors the Board may consider in determining credibility). In doing so, equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. C. Service Connection for PTSD The Veteran contends that she is entitled to a higher rating for her service-connected psychiatric disorder due to the severity of her PTSD symptoms, incurred as a result of the sexual trauma she experienced during her military service. As she is currently only service connected for major depressive disorder, and establishing entitlement to service connection additionally for PTSD requires evidence substantiating elements different from those considered when establishing service connection for depression, the Board has construed her contention as alleging a claim for service connection for PTSD. Compare 38 C.F.R. § 3.303(a), and Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), with 38 C.F.R. § 3.304(f). To be entitled to service connection for PTSD, the record must include the following: (1) medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The reference to 38 C.F.R. § 4.125(a) means the diagnosis must be in accordance with the established criteria of the Fourth Edition of the American Psychiatric Association's DIAGNOSTIC AND STASTISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV). Under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, as it is here, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident, including, but not limited to records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Accordingly, a medical opinion based on a post-service examination of a Veteran may be used to establish the occurrence of the claimed stressor. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. 38 C.F.R. § 3.304(f)(5). Examples of behavior changes that may constitute credible evidence of the stressor include a requests for transfer to another duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. Here, the Veteran first sought mental health treatment with VA in July 2004. An initial evaluation was conducted by a VA psychiatrist where she was initially diagnosed with recurrent major depression. In October 2004, a preliminary screening for PTSD was positive, and she was asked to return to the PTSD clinic for a full evaluation. That follow-up evaluation was in August 2005. At that evaluation she, for the first time, described two instances of military sexual trauma. The first occurred in 1975 when a male Airman First Class groped and harassed her when she was out celebrating the end of boot camp. She stated that she had to flee back to her barracks that night to end the assault. The second event occurred in 1975 in Florida when her superior threatened to take action against her personally and professionally if she did not "go out with him and give him what he wanted." He offered to give her a positive rating if she did what he asked. He also repeatedly commented on her breasts and groped her. She reported being very afraid that he would try to "spread lies" in order to adversely impact her career. Ultimately, while she was too afraid to report him, she asked a superior to be reassigned and was transferred to another dining hall. After that incident, she reported being very self-conscious and avoidant of men. She also said she felt threatened, violated, fearful, helpless, and powerless to stop the assault and harassment, and began struggling with her weight. She married the next year, hoping this would stop the harassment and assault, but, instead, she said her spouse and her superiors were verbally abusive and demeaning in the way they referred to her weight gain. She said she was repeatedly encouraged to leave the service, which she did in 1985, and explained that she felt too embarrassed, stressed, and depressed to continue. She stated that she never told anyone about the sexual harassment and trauma because she was embarrassed and felt dirty and ashamed. She said she "started off on the right foot," but the assault and harassment altered her ability to pursue her career and still has recurrent emotional reactions to these events. The August 2005 report shows that the Veteran experiences moderate re-experiencing symptoms including distressing recollections and physiological activity, moderate psychological distress, and mild dissociative flashbacks. The Veteran was also found to make severe efforts to avoid trauma-related material, including avoiding television shows depicting any type of assault of violence against women. She also reported significant feelings of detachment from others and exhibited a mildly restricted range of affect. She had moderate hyper-arousal symptoms, including difficulty with sleep, anger, irritability, socially isolative behavior, an exaggerated startle response, and hypervigilance, like extreme safety-checking behavior in the home. The report notes that the Veteran's depressive symptoms began in the military and are mostly likely a result of her sexual trauma in service. It also shows that her depression and symptoms from the trauma impacted her career as a result of her unconscious need to gain weight to keep men from looking at her and making advances toward her. She was described as seriously impaired occupationally due to her continued struggle with depression and PTSD due to the sexual trauma in service, as well as socially impaired as a result of her PTSD symptoms. The Veteran's test results were consisted with a diagnosis of PTSD and evidenced severe depression. In summary, the results of the evaluation supported a diagnosis of PTSD, chronic, as a result of military sexual trauma, and as she met the full criteria for a current major depressive episode, Major Depressive Disorder (MDD). The specific diagnosis, provided in accordance with the DSM-IV criteria and reviewed and approved by a VA licensed clinical psychologist, was "PTSD, chronic, serious; MDD, recurrent; severe." Following this diagnosis, a note of "military sexual trauma" was added to the diagnosis given by her VA treating psychiatrist in September 2005. This psychiatrist, the same who first evaluated the Veteran in July 2004 and has provided regular mental health treatment since, also submitted a statement in February 2011 discussing the Veteran's "PTSD symptoms." Subsequent VA examinations were conducted in November 2006 and June 2009. The November 2006 examiner mentioned that the Veteran was evaluated for PTSD and was diagnosed with serious and chronic PTSD and depression, but only diagnosed a major depressive disorder without any explanation. The June 2009 examiner noted that the Veteran reports PTSD, but did not otherwise address this diagnosis. Here, as indicated above, the Veteran served on active duty from April 1975 to April 1985. Her service treatment records show that she was serving in Florida as of August 1975. They also show periodic weight counseling in June 1978, April 1980, November 1983, and July 1984. Service treatment records from October 1983 show that she received counseling from the mental health clinic for situational nervousness after being referred from the primary care clinic. These records note that she complained of nerves and had a history of weight problems that resulted in cancelled assignments and job problems. The notes show that the Veteran talked very fast, appeared nervous, and had a history of difficulty with her weight. Psychological testing was administered and scored, but the results are not available. She was ultimately referred to a weight management group. Post-service mental health treatment records from January 1986, less than a year after discharge, show that the Veteran was having significant marital problems due to her weight problems, which she asserted led to her discharge after 10 years of service. She stated that her husband's constant criticism caused her to have low self-esteem and depression, which resulted in further emotional eating. The notes indicate that her mental status was unremarkable except for the "defense mechanism of denial," largely concerning the nature of her weight problem and the possibility of non-weight related issues in her marriage. Her affect was described as "falsely cheerful and optimistic, belying serious depression." A follow-up note shows that the Veteran was unwilling or afraid to face confronting real change in her life, preferring a "quick fix" to her weight problems. She agreed that the causes of her obesity should be addressed, but was unwilling to engage in further psychotherapy at that time. The August 2005 PTSD evaluation contains a competent and credible account of the sexual assault and harassment the Veteran experienced in service and her request for a transfer to another dining hall as shown by the amount of detail provided by her, the lack of any inconsistency with any other evidence of record, the existence of independent evidence that corroborates details of her account, and the characterization of and reliance on the account in the August 2005 PTSD evaluation report. See Menegassi, 638 F.3d at 1382; Buchanan, 451 F.3d at 1336-37; Caluza, 7 Vet. App. at 511. Her unwillingness to discuss the sexual trauma with any military personnel, friends, or family due to feelings of fear and shame, as well as the onset of psychiatric and physiological symptoms following the trauma, including her weight gain and a deterioration in her work performance, are both shown by the account recorded in the August 2005 PTSD evaluation report and corroborated by the record of mental health treatment less a year after discharge, which shows that she exhibited the defense mechanism of denial and unwillingness to submit to further treatment, and her service records, which show episodes of depression and unexplained instances of nervousness during her service. See 38 C.F.R. § 3.304(f)(5). Considering the evidence as a whole, and resolving all doubt in favor of the Veteran, the Board finds her account of her in-service personal assault and harassment to be corroborated by her service records and post-service military and VA treated records, particularly the history discussed and analyzed in the August 2005 PTSD evaluation report. See Menegassi, 638 F.3d at 1382; Cohen, 10 Vet. App. at 138; 38 C.F.R. § 3.304(f)(5); see also 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 53-56; 38 C.F.R. § 3.102. The medical evidence establishes a diagnosis of PTSD and depression in accordance with the criteria found in the DSM-IV, and, furthermore, that the addition of PTSD to her DSM-IV Axis I diagnosis represents progression of her prior diagnosis of depression. See 38 C.F.R. §§ 4.125(b). As the diagnoses provided in the November 2006 and June 2009 VA examination reports, showing depression only, do not clearly state that a diagnosis of PTSD was explicitly ruled out, and, if so, do not provide any rationale for finding that a diagnosis of PTSD was not warranted in consideration of the extensive findings discussed and evaluation in report of the August 2005 PTSD evaluation, these diagnoses do not outweigh the diagnosis of PTSD found in August 2005. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (explaining that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Lastly, the medical evidence clearly links the Veteran's PTSD to the sexual assault and harassment that occurred during her military service. 38 C.F.R. § 3.304(f)(5). Accordingly, the Board finds that the Veteran has a qualifying diagnosis of PTSD due to MST; her service records, VA treatment records, and competent and credible lay testimony confirm the occurrence the reported in-service sexual assault and harassment, and the medical evidence relates the diagnosis of PTSD to the sexual trauma in service. Thus, the Board finds that the evidence sufficiently satisfies the criteria to establish service connection for PTSD. See 38 C.F.R. § 3.304(f)(5); see also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53. D. TDIU The Veteran contends that she is entitled to a total disability rating because she in unable to work due to her psychiatric symptoms and left wrist disability. Total disability ratings may be awarded upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.26. For consideration under the schedular criteria, the Veteran must have either a single service-connected disability ratable at 60 percent or more, or two or more disabilities with a combined rating of 70 percent or more and at least one disability ratable at 40 percent or more. See 38 C.F.R. § 4.16(a). Entitlement to a TDIU will be awarded when the service-connected impairment of mind or body is sufficient to render it impossible for the average person to obtain substantially gainful employment, but, where this objective standard is not met, consideration will also be given to the Veteran's particular circumstances as an individual, including unusual physical or mental effects, peculiar effects of occupational activities, defects in physical or mental endowment, and the effect of the combinations of service-connected disabilities. 38 C.F.R. § 4.15; VAOPGCPREC 75-91 (1991); see also Hatlestad v. Derwinski, 3 Vet. App. 213, 216 (1992). Other individual factors for consideration include the Veteran's education, training, experience, and employment history. See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009); VanMeter v. Brown, 4 Vet. App. 477, 479 (1993); cf. 38 C.F.R. § 4.16(b). Consideration may not be given to the Veteran's age or the impairment caused by any nonservice-connected disabilities, although no discussion of these factors is necessary where the Board determines that the service-connected disabilities alone are sufficient to produce employability. See 38 C.F.R. §§ 3.341(a), 4.16, 4.19; see also Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Being unable to maintain substantially gainful employment is not the same as being found completely unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The use of the word "substantially" suggests an intent to impart flexibility into a determination of the Veteran's overall employability. Id. Essentially, the Board should ask whether a particular job is realistically within the physical and mental capabilities of the Veteran. Moore (Robert) v. Derwinski, 1 Vet. App. 356, 359 (1991). The availability of that particular job in the national or local economy, however, is an extraneous factor not relevant to the TDIU determination. Smith v. Shinseki, 647 F.3d 1380, 1384 (Fed. Cir. 2011). The VA Adjudication Procedures Manual defines "substantially gainful employment," as "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." M21-1MR, pt. IV, sbpt. ii, ch. 2, § F.24.b (Jan. 7, 2007). Whether employment is substantially gainful should be determined irrespective of the number of hours or days that the Veteran actually worked and without regard to the Veteran's earned annual income prior to the alleged total occupational impairment. Faust v. West, 13 Vet. App. 342, 356 (2000). Furthermore, marginal employment is not substantially gainful. 38 C.F.R. § 4.16(a). Marginal employment generally shall be found to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. However, employment producing income in excess of the poverty threshold may be still be found to be marginal in cases where it is justified by the particular circumstances of employment, e.g., where the Veteran is employed in a protected environment like a family business or sheltered workshop. Id. Here, the Veteran satisfies the threshold minimum criteria for schedular consideration of a TDIU and she has a total combined disability rating of 70 percent with a single service-connected disability rated at 50 percent. Furthermore, she is unable to secure or follow a substantially gainful occupation due to her service-connected psychiatric symptoms and loss of motion of the left wrist. Review of the Veteran's military and post-service work history shows that she served as a food service specialist and a personnel specialist in service and continued to work at the same base as a civilian cook and cash clerk after service. She also completed two years of junior college. She has not worked full-time since 1994, and was removed from her last position as a cash clerk in 2000 due to physical incapacity to perform the duties of the position. The causes of her unemployability at that time were the limitations suffered as a result of her extensive history of gastrointestinal surgery, hospitalization, and additional treatment, as well as a left knee injury. In a February 2011 statement, the Veteran's primary treating psychiatrist at the VA said that the Veteran's PTSD symptoms became more prominent after she stopped working, and her psychological condition further worsened after she finally disclosed and sought treatment for her past history of military sexual trauma. The VA psychiatrist found that these symptoms now inhibit her social interaction to a greater degree as she is more irritable and says things like "I may hurt somebody," and her symptoms of poor concentration, anxiety, depressed mood, irritability, and hypervigilance would interfere with her ability to work. The VA psychiatrist asserted that, consequently, the Veteran is unemployable. Additionally, the psychiatrist's treatment records from June 2007 show that the Veteran's anger has become focused on the men who sexually assaulted her such that she would have difficulty working with men, and her notes from August 2008 show that the Veteran was not able to work around people or concentrate. Consideration of the Veteran's specific history of MST from her immediate supervisor's pervasive sexual harassment at her duty assignment, consisting of regular threats of blackmail and promises of a positive rating in exchange for sex, and combined with frequent comments on the size of her breasts and multiple instances of unwanted touching of a sexual nature causing PTSD; her past work history consisting entirely of positions similar to the one she held when she was subjected to the aforementioned trauma; and the increasing severity of the Veteran's posttraumatic responses to stimuli associated with the in-service trauma, indicate that the degree of impairment related to the occupations for which she is qualified would be especially severe in her case. Furthermore, VA examination in April 2006 showed considerably limited left wrist range of motion. The Veteran reported difficulty driving and writing and, on examination, had difficulty tying shoelaces, fastening buttons, and picking up and tearing a piece of paper. The examiner found that she would experience pain and discomfort with prolonged writing, typing, or driving. This disability would be expected to cause considerable occupational impairment in any job role involving cooking or typing, as all of the Veteran's past employment positions have required, particularly as she is left-handed. Therefore, the Veteran's particular circumstances, particularly regarding the significance of the relationship between the Veteran's MST and her past work history to the manifestation of her particular symptoms, as well as the manual tasks inherently involved working as a clerk, cook, or personnel specialist, warrant an award of TDIU due to her service-connected disabilities, resolving any doubt in favor of the Veteran. See 38 U.S.C.A. § 1155; Rice, 22 Vet. App. at 452; VanMeter, 4 Vet. App. at 479; Hatlestad, 3 Vet. App. at 216; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16; VAOPGCPREC 75-91 (1991). ORDER Service connection for PTSD is granted, so aside from the already service-connected major depressive disorder. A TDIU also is granted, subject to the statutes and regulations governing the payment of VA compensation. REMAND Unfortunately, further development is necessary before the Board can adjudicate the Veteran's appeal for a higher initial rating for her service-connected psychiatric disability, to include the issue of whether separate ratings are warranted for the diagnoses of PTSD and depression, without prejudice to her. See Jarrell, 20 Vet. App. at 332; Bernard, 4 Vet. App. at 394. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. Specifically, additional efforts must be undertaken to obtain any outstanding records relevant to the issue on appeal, to provide the Veteran with a VA examination to determine the current severity of her PTSD, and to obtain a medical opinion as to whether the symptomatology attributable to her PTSD and/or depression can be differentiated. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stefl, 21 Vet. App. at 123; 38 C.F.R. § 4.2. The Veteran must be provided with an additional VA examination in order to accurately assess the current severity of her psychiatric symptoms, as VA treatment records indicate that her condition may have increased in severity since her last VA psychiatric examination in June 2009. See Hart v. Mansfield, 21 Vet. App. 505, 508 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994)); 38 C.F.R. § 3.327(a); see also 38 U.S.C.A. § 5103A(d)(1). Additionally, as no opinion has been obtained on the specific symptoms attributable to each psychiatric diagnosis, and whether or not these separate diagnoses have overlapping symptomatology, this medical opinion should be obtained on remand. 38 C.F.R. § 4.14 (the evaluation of the same disability or manifestation under various diagnoses is to be avoided); see also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("[T]wo defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology."); Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (holding that the critical element is that none of the symptomatology for any one condition duplicate or overlap the symptomatology of another). Lastly, an effort should be made to obtain any outstanding VA mental health treatment records for the Veteran, including all relevant group therapy records that are not already associated with the record. 38 U.S.C.A. § 5103A(b)(3), (c)(2); 38 C.F.R. § 3.159(c)(2), (3). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's outstanding VA mental health treatment records, including all relevant group therapy records that are not already associated with the record, from the VA Medical Center in Durham, North Carolina. All information which is not duplicative of evidence already received should be associated with the claims file or the Veteran's electronic claims folder. 2. Thereafter, schedule the Veteran for a VA psychiatric examination. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must conduct a detailed mental status examination, as well as any other indicated tests and studies. The examiner is asked to make the following determinations: (a) Identify all symptoms that the Veteran currently manifests or has manifested in the recent past that are specifically attributable to her (i) PTSD and/or (ii) depression and describe their severity. (b) State whether there any symptoms of PTSD, depression, or any other diagnosable mental disorder that are separate and distinct, i.e., not attributable to any of the other diagnosed disorders. If any symptoms can be solely attributed to a diagnosed mental disorder other than depression or PTSD, state whether this disorder is a manifestation of the Veteran's PTSD and/or depression, or otherwise related to PTSD, depression, or her military service. (c) Discuss the effect that the Veteran's (i) PTSD and/or (ii) depression have on her social and occupational adaptability. (d) The examiner should assign a Global Assessment of Functioning (GAF) score consistent with the DSM- IV and explain the significance of the score. Determine what degree of impairment of functioning, as reflected by the GAF score, is due to each separate and distinct diagnosed psychiatric disorder, or explain why the GAF score cannot be differentiated. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Review the medical examination report to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 4. Finally, readjudicate the claim on appeal, now characterized as whether the Veteran is entitled to a higher initial rating for PTSD and/or depression, to include whether separate ratings are warranted for the Veteran's psychiatric disability. If any claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs