Citation Nr: 1307004 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 07-17 124A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent before October 26, 2007 and in excess of 50 percent effective October 26, 2007 for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an evaluation in excess of 10 percent for service-connected lumbar strain. 3. Entitlement to service connection for right leg and right foot numbness, to include as secondary to service-connected lumbar strain. 4. Entitlement to service connection for lumbar spine disc disease and spurring. 5. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from October 1970 to April 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by which the RO, inter alia, denied entitlement to the benefits sought. In the April 2006 decision, the RO denied entitlement to an evaluation in excess of 30 percent for the service-connected PTSD. Subsequently, during the course of the appeal, the RO increased the PTSD evaluation to 50 percent effective October 26, 2007. Although each increase represents a grant of benefits, the United States Court of Appeals for Veterans Claims (Court) has held that a decision awarding a higher rating, but less that the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, this matter continues before the Board. In August 1993, the Veteran filed a claim for an increased rating for service-connected lumbar strain. At that time, this was the Veteran's only service-connected disability. In a February 1994 rating decision, the RO denied the Veteran's claim. The only issue as listed in the February 1994 rating decision was "Increased evaluation for service-connected chronic lumbar spine strain." In the narrative, the RO explained why an increased rating for lumbar strain was not warranted as well as why a bulging disc, disc space narrowing, and osteophyte formation involving the low back was not service connected. The rating code sheet reflected that bulging disc, degenerative disc disease, and spurring of the lumbar spine was not service connected. In February 1994, the Veteran was sent notice of the February 1994 rating decision. The RO advised the Veteran that his claim for an increased rating for the service-connected lumbar strain had been denied. The RO failed to mention any action taken regarding the lumbar spine bulging disc, degenerative disc disease, and spurring. If a claimant does not appeal an adverse the agency of original jurisdiction (AOJ) determination as prescribed in 38 C.F.R. § 20.302, the AOJ determination becomes final so long as the claimant was properly notified of the AOJ determination. 38 C.F.R. § 20.1103 (2012). In this case, the AOJ is the RO. The Veteran did not appeal the February 1994 rating decision. However, with respect to the matter involving the bulging disc, degenerative disc disease, and spurring of the lumbar spine, the Veteran was not properly notified. The issue was not listed in the issue section of the rating decision, thus the Veteran would not necessarily have knowledge that the RO would be making a determination regarding that issue. As well, he was not given notice of the denial. As such, the February 1994 rating decision is not final with respect to any aspect of the low back other than the issue of entitlement to an increased rating for the service-connected lumbar strain. To reopen a finally decided claim, a claimant must submit new and material evidence. See generally 38 C.F.R. § 3.156 (2012). Here, no new and material evidence is required regarding the issue of entitlement to service connection for spine disc disease and spurring because, as explained above, a final determination regarding that matter has never been made. The Board notes that in a December 1996 rating decision, the RO denied entitlement to chronic back pain, chronic diarrhea, and facial cancer as a result of Agent Orange exposure. Such a determination, as it concerns the back, does not have an impact upon the service connection claim entailing the back because service connection for recurrent low back pain was granted in August 1972; the disability was later referred to as lumbar strain. In any event, because the December 1996 rating decision does not relate to the low back disability at issue herein, its finality (that decision was never appealed) is immaterial. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2012). The Board observes that the RO has not yet dealt with the matter of TDIU. As it appears to have been raised by the record, the Board is remanding it for further development consistent with the Court's decision in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU as a result of that disability is warranted. The issues of entitlement to an evaluation in excess of 10 percent for service-connected lumbar strain, entitlement to service connection for right leg and right foot numbness, to include as secondary to service-connected lumbar strain, entitlement to service connection for lumbar spine disc disease and spurring, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Throughout the appeal period, both before and after October 26, 2007, the Veteran's service-connected PTSD has been manifested by at least serious symptomatology as well as occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation of 70 percent, but no higher, for the Veteran's service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal (the Veteran indicated expressly in the June 2007 substantive appeal that he desired a 70 percent evaluation for PTSD, which the Board is granting for the entire appeal period). Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Law and Regulations Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability. Schafrath, 1 Vet. App. at 594. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The schedular criteria, effective as of November 7, 1996, incorporate the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130 (2012). The Veteran's service-connected PTSD has been rated 30 percent disabling before October 3, 2012 and 50 percent disabling effective that date under Diagnostic Code 9411, which pertains to PTSD. The Board notes that mental disorders are rated under a formula, which is outlined in 38 C.F.R. § 4.130. A rating of 10 percent is warranted for PTSD if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9400. A rating of 30 percent is warranted for PTSD if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted if it is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating, may be assigned for 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 criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular evaluation contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. 4.130, Diagnostic Code 9400. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score of 39 to 40 indicates "Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school)." Id. A GAF score of 41-50 indicates "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)." Id. A GAF score of 51-60 indicates "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)." Id. A GAF score of 61-70 indicates "Mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id. A GAF score of 71-80 reflects that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). Id. The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard, 9 Vet. App. at 267; Carpenter v. Brown, 8 Vet. App. 240, 243 (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. The GAF score must be considered in light of the actual symptoms of a veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a) (2012). The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The United States Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The Board is precluded from differentiating between the symptomatology attributable to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App.181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Factual Background The Veteran contends that his PTSD warrants a higher disability rating both before and after October 26, 2007. Service connection was granted for PTSD in a December 1998 rating decision, and a 30 percent evaluation was assigned. In August 2005, the Veteran filed a claim for increase stating that the disability had worsened. A February 2006 VA progress note indicates that a depression screen was negative. The Veteran denied feeling down, depressed, or hopeless as well as other symptoms of depression. The Veteran, however, had lost his son, and was in counseling with hospice. As to PTSD symptoms, the Veteran denied nightmares and avoidance. He endorsed being easily startled and constantly on guard. He also reported feeling detached from others. The PTSD screening was assessed as negative. In an August 2007 written statement, the Veteran indicated that he could not sleep and that he was nervous about what might happen. He stated that he had nightmares "all the time" and that he had fits of rage. He indicated that he had no motivation. He could not be around others and was constantly on guard. An October 2008 letter from JL, LCSW, who had been treating the Veteran, indicated that he was suffering from PTSD and that his GAF score was 40 and that the highest the GAF score had been in the previous 12 months was 43. She had been treating the Veteran for a year and indicated, quite understandably, that the Veteran's condition worsened after the sudden death of his son. According to JL, the Veteran suffered from hyperarousal, hypervigilance, and a heightened startle response. These symptoms caused sleep problems, a loss of appetite, sexual dysfunction, and difficulty concentrating. The Veteran had disturbing flashbacks. The Veteran was also experiencing anhedonia, avoidance, and feelings of isolation and despair. According to JL, the Veteran was suffering from a reduced quality of life. Apparently, his ability to function was compromised by over activity due to hyperarousal and exhaustion caused by the overactivity. He had panic attacks with reminders of trauma. The Veteran had frequent flashbacks. He perceived many elements in his environment as unsafe. The Veteran feared being around others as well as leaving his home. The Veteran's PTSD symptomatology had a negative impact upon his marriage. There were impairments in concentration and focus that had adversely impacted his occupational and financial status. The record reveals that the Veteran first sought treatment with JL in October 2007. October 2007 treatment notes reflect that the Veteran lost his son following an accident in March 2005. The Veteran and his wife were both realtors. It appears that the Veteran was running his own real estate firm. The Veteran reported drinking too much and a quick temper. The Veteran's symptoms, which he indicated had been chronic since Vietnam service, included disturbed sleep and nightmares, decreased concentration, an inconsistent appetite, and a mood that was a two on a scale of one to five. Treatment notes dated from 2007 to 2009 indicate flashbacks, anxiety, depression, and other symptoms. GAF scores in 2009 were between 40 and 43. In November 2010, the Veteran was afforded a fee-basis medical examination. The Veteran reported sleep disturbances, nightmares, depression, nervousness, panic attacks, disorientation on awakening from nightmares, flashbacks, anxiety, tearfulness, anger outbursts, irritability, physical fighting, alcohol abuse, suicidal ideation, hypervigilance, suspiciousness, intrusive memories of trauma, family avoidance, low motivation, and more. The Veteran reported employment difficulties due to concentration and focus problems and lowered motivation. The Veteran described a physical fight 18 months earlier and indicated that he had also broken his hand from punching a wall. The symptoms were described as severe, and the Veteran indicated that his 36 year marriage was ending due to his PTSD symptoms. The Veteran denied suicidal ideation. He indicated that he was self employed. On objective examination, the Veteran was oriented, and his appearance was appropriate. Behavior was appropriate, and eye contact was good. The Veteran displayed a flattened affect, anxiety, a depressed mood, and impulse control problem. The Veteran reported a bad memory. Panic attacks occurred more than once a week. The Veteran was hypervigilant. There was no obsessive compulsive behavior, and no psychosis was observed. Thought processes were normal, but judgment was impaired as evidenced by continued alcohol abuse and physical fighting. Abstract thinking was normal, and memory was only slightly impaired. There was occasional suicidal ideation but no plan. The examiner indicated that suicide risk was low. There was no homicidal ideation. The Veteran was socially avoidant. The examiner diagnosed PTSD and alcohol abuse and assigned a GAF of 47-51. The examiner also opined that the alcohol abuse was secondary to PTSD. The examiner opined that the Veteran was capable of handling his VA benefits payments and conducting the activities of daily living. The examiner opined that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and mood. The examiner stated the foregoing assessment was due to symptoms such as suicidal ideation, near continuous depression affecting the ability to function independently, appropriately, and affectively, impaired impulse control, and minor auditory hallucinations with no signs of psychosis. There was difficulty understanding complex commands due to memory and focus problems. A June 2011 VA progress note indicates complaints of confusion, insomnia, attention problems, and anxiety. The Veteran indicated that these symptoms had been present since service but had worsened in recent years. The Veteran had intense anxiety with panic symptoms, nightmares, intrusive thoughts, hypervigilance, difficulty focusing, insomnia, difficulty connecting with others, and depression. The Veteran still enjoyed boating and spending time with his dogs. He denied suicidal ideation. There were no symptoms of mania and psychosis. The Veteran was no longer receiving counseling. He had never been hospitalized for his PTSD and had never seen a psychiatrist until the present visit. The Veteran was using some psychotropic medication. Objectively, the Veteran was nicely dressed and well groomed. He became tearful on a few occasions during the visit. He was normokinetic and cooperative and displayed normal speech and thought processes. He was depressed. He denied suicidal and homicidal ideation. Insight and judgment were intact. The examiner diagnosed PTSD and rendered other Axis I diagnoses. A GAF score of 50 was assessed. Discussion A close review of the record reflects that the Veteran's PTSD symptoms worsened substantially and quite understandably in 2005 after the tragic loss of his son. Although there is no record of treatment before 2007, the Veteran reported that the substantial worsening of symptomatology occurred in 2005. Thereafter, GAF scores ranged from 40 to 51, reflecting, at a minimum, serious symptoms, and symptomatology described on treatment and examination has been substantial. The Board finds no reason to question the Veteran's credibility, as his accounts and recitation of symptoms have been consistent over the course of the appeal, examiners have voiced no concerns of malingering. Other considerations include inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Thus, because the Veteran has indicated, in essence, that current symptoms began in 2005 and because the objective symptomatology has been similar over the course of the appeal, the Board concludes that the Veteran's disability picture did not fluctuate materially in severity over the course of the appeal, and a staged rating need not be considered. Hart, supra. Thus, the discussion that follows concerns the appeal period in its entirety. The GAF scores outlined above reflect, at a minimum, serious symptoms. On examination in November 2010, the examiner opined that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and mood. The November 2010 examiner's assessment, especially when coupled with the GAF scores assigned starting in 2007, is consistent with the criteria for a 70 percent evaluation. 38 C.F.R. § 4.130, Diagnostic Code 9411. The examiner gave some examples of PTSD manifestations that caused the foregoing level of impairment. Not all of the types of symptoms listed as examples of manifestations that might be associated with a 70 percent evaluation were present. For example, the Veteran can function independently despite frequent panic attacks, he has no obsessional rituals, neglect of personal appearance is not present, and disorientation is not shown. On balance, however, when taking into account the Veteran's occupational and social impairment causing deficiencies in most areas, low GAF scores, and symptoms such as impaired impulse control, social isolation, frequent panic, and nightmares, the Veteran's disability picture more nearly approximates that of a 70 percent disability rating for PTSD. Id.; 38 C.F.R. § 4.7; Mauerhan, 16 Vet. App. at 443. In his VA Form 9 (Appeal to the Board of Veterans' Appeals), the Veteran indicated that he desired a 70 percent evaluation for his service-connected PTSD. Thus, the full benefit sought has been granted, and no further discussion need take place. Nonetheless, the Board finds that the criteria for a 100 percent evaluation are not met. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran's symptoms do not more nearly reflect total occupational and social impairment. There has been no evidence of grossly inappropriate behavior, disorientation, or severe memory loss that includes lack of recollection of basic personal information. The Veteran's thought and communication processes are normal, he functions independently, he is rooted in reality, and despite apparent difficulties, is running his own business. Socially, he is rather isolated but not so isolated so as to prevent employment or self care. The record does not include information regarding other symptoms that might be suggestive of total occupational and social impairment. Mauerhan, supra. Thus, a 100 percent evaluation is not warranted at any time during the appeal period. 38 C.F.R. §§ 4.7, 4.130; Hart, supra. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant an even more favorable decision. The Board has considered whether an extraschedular evaluation would have been warranted for PTSD. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's service-connected PTSD are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9411, specifically provide for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's PTSD has been characterized as serious. He experiences panic, anxiety, nightmares, sleep problems, hyperarousal, depression, and impulse control problems. There has been some difficulty understanding complex commands due to difficulty concentrating. These symptoms are either explicitly part of the schedular rating criteria or are "like or similar to" those symptoms and impairment explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The levels of occupational and social impairment are also explicitly part of the schedular rating criteria. In addition, the GAF scores are incorporated as part of the schedular rating criteria, as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with an Acquired psychiatric disorder, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A 70 percent evaluation for the service-connected PTSD is granted both before October 26, 2007 and effective that date, subject to the law and regulations governing the payment of veterans' benefits. REMAND A remand is required with respect to the issues of entitlement to an evaluation in excess of 10 percent for service-connected lumbar strain, entitlement to service connection for right leg and right foot numbness, to include as secondary to service-connected lumbar strain, entitlement to service connection for lumbar spine disc disease and spurring, and entitlement to TDIU to ensure that there is a complete record upon which to decide the claims. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). At the outset, the Board must ensure that the record is complete. The record contains VA clinical treatment records dated until May 2011. VA records dated after May 2011 are not part of the claims file. In addition, in an October 1993 VA medical examination report, the examiner made reference to VA treatment the Veteran received at the Fresno VA Medical Center (MC) in 1982. The record contains VA clinical records dated no earlier than October 26, 1990. Because VA medical records dated before October 26, 1990 and after May 2011 might well be pertinent to the issues yet to be decided, they must be obtained. See 38 C.F.R. § 3.159(c)(2); Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990) (holding that all VA treatment records that could potentially be helpful in resolving a claim must be obtained); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Next, the Board observes that the Veteran's service-connected orthopedic disability, lumbar strain, has not been comprehensively examined for rating purposes in over seven years. Thus, a VA spine examination for a current picture of the Veteran's service-connected low back disability must be scheduled, as it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). The examination instructions are contained in the second paragraph below. As to the service connection claims, the evidence is equivocal regarding the presence of a right lower extremity neurological disability. Right lower extremity numbness was seen on VA examination in October 1993, and right lower extremity sciatica was observed but only left lower extremity sciatica was ultimately diagnosed on examination in 2006. The evidence suggests, however, that if such a disability exists, it could be related to the service-connected low back disability. In such situations, VA's duty to assist mandates that VA provide a medical examination to the claimant in order to assist in the development of the claim. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination instructions are contained in the second paragraph below. Regarding the claimed lumbar spine disc disease and spurring, the Veteran asserts back injuries in service during combat service. The service records do reflect combat service. The Veteran, indeed, has been awarded the Combat Infantryman Badge. In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b) (West 2002); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). Because the Veteran served in combat, and his alleged back injuries occurred during such service, the Board is crediting the Veteran's assertions regarding back injuries in service. Because there is evidence of back injuries in service and currently shown degenerative changes and the like, a VA examination concerning disc disease and spurring must be scheduled for an opinion regarding etiology. 38 C.F.R. § 3.159(c)(4); McLendon, supra. The examination instructions are contained in the second paragraph below. In Rice, the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. In this case, the evidence reflects that the Veteran's service-connected disabilities, and PTSD in particular, have had a negative impact upon employability. As such, the issue of entitlement to TDIU is raised by the record. Hence, the issue is properly before the Board. A review of the record shows that further development is needed to properly adjudicate the TDIU claim. The law provides that a TDIU may be granted upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). While the Veteran has been afforded VA examinations, an opinion as to his unemployability and the effect of his service connected disabilities on his employability was not rendered. The Board finds that the orthopedic examination that will be scheduled should address the matter of employability and that a VA psychiatric examination is necessary for the same purpose. Namely, the examiners will determine whether the Veteran is unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Associate with the claims file all VA clinical records dated after May 2011 and all those dated before October 26, 1990 to include 1982 records from the Fresno VAMC. 2. After accomplishing the first remand directive, schedule a VA orthopedic examination. A copy of this remand as well as the claims file should be forwarded to the examiner, and the examiner must read the remand as well as all pertinent documents in the claims file prior to examining the Veteran. The examination report must state whether the remand and claims file review took place. The examiner is asked to diagnose all low back disabilities other than the service-connected low back strain to include neurological disorders related to the low back. Regarding each such disability diagnosed, the examiner must opine whether it is at least as likely as not (50 percent or greater likelihood) related to service or whether it is at least as likely as not (50 percent or greater likelihood) proximately due to or aggravated by the service-connected lumbar strain or any other low back disability that is found to be related to service. As to the service-connected lumbar strain, the examiner must determine the nature and severity of the service-connected disability. Thoracolumbar spine range of motion should be measured. All symptoms should be described in detail; the examiner in this regard should identify any objective evidence of pain or functional loss due to pain associated with the service-connected disability. The examiner should be requested to provide an opinion as to the extent that lumbar spine pain limits the Veteran's functional ability. The examiner should also be requested to determine whether, and to what extent, the lumbar spine exhibits weakened movement, excess fatigability, or incoordination. Finally, the examiner should comment on the effect of the cervical spine disability on range of motion. As to the service-connected disability and any other disability diagnosed herein that is found to be secondary to or aggravated by a service-connected disability, the examiner should give an opinion regarding whether it is at least as likely as not ( 50 percent or greater likelihood) that any of the foregoing service-connected disabilities, in and of themselves or in conjunction with the service-connected PTSD, prevent the Veteran from securing or maintaining substantially gainful employment. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. As stated, a rationale should be given for all opinions and conclusions expressed in a typewritten report. If an opinion cannot be rendered without resorting to speculation, the examiner should explain why it would be speculative to respond. 3. Schedule a VA mental health examination for an opinion regarding whether it is at least as likely as not ( 50 percent or greater likelihood) that the Veteran's service-connected PTSD, in and of itself or in conjunction with other service-connected disabilities, prevents him from securing or maintaining substantially gainful employment. A full rationale for all opinions and conclusions should be provided and a resort to speculation should be avoided. The examination report must indicate whether pertinent records in the claims file were reviewed in conjunction with the examination. If an opinion cannot be rendered without resorting to speculation, the examiner should explain why it would be speculative to respond. 4. Review the record and ensure that all the above actions are completed. When the RO/AMC is satisfied that the record is complete and that the examination is adequate for rating purposes and otherwise, the remaining claims should be readjudicated. If the benefits sought on appeal remain denied, furnish the Veteran and his representative with a supplemental statement of the case and allow the appropriate time for response. Thereafter, the claims should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs