Citation Nr: 1308537 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 09-45 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial evaluation for posttraumatic stress disorder (PTSD) with major depression, currently evaluated as 50 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from September 2001 until September 2004. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In that decision, the RO granted service connection for PTSD with major depressive disorder and assigned a 50 percent disability evaluation effective from June 27, 2008. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence demonstrates that the Veteran's PTSD has been manifested by 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 an initial rating of 70 percent, but no higher, for PTSD have been satisfied. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. Nevertheless, as this is an appeal arising from the initial grant of service connection, the notice that was provided in July 2008 before service connection was granted was legally sufficient and VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); see also VAOPGCPREC 8-2003 (December 22, 2003). VA also has a duty to assist the Veteran in the development of the claim which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all necessary development has been accomplished, as the record includes the Veteran's service treatment records, VA outpatient treatment records, employment records, lay statements and the reports of VA examinations. Therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Additionally, the Veteran provided testimony at a December 2012 Board hearing. The undersigned Veterans Law Judge clearly set forth the issue to be discussed, sought to identify pertinent evidence not currently associated with the claims folder, and elicited further information as to the dates and locations of treatment when appropriate. The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that VA fully complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). Additionally, the VA examinations obtained in this case are adequate, as they are predicated on a review of the Veteran's medical history, contain a description of the history of the disability at issue, document and consider the Veteran's complaints and symptoms, and fully provide medical evidence that is relevant to the governing rating criteria. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and Analysis The Veteran seeks an increased evaluation for posttraumatic stress disorder (PTSD) with major depressive disorder. In the March 2009 rating decision, the RO granted service connection for PTSD with major depressive disorder and assigned a 50 percent evaluation pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran argues the current evaluation does not accurately reflect the severity of his disability. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the evidence is at an approximate balance for an increased 70 percent evaluation will be allowed. 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. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board notes that the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). The Court has also held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's PTSD with major depression is evaluated under Diagnostic Code 9411. Regulations pertaining to the criteria for evaluating psychiatric disorders provide for a 50 percent rating when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.125-4.130, Diagnostic Code 9411. A higher 70 percent evaluation will be assigned where there is 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 the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted when there is 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. Id. In evaluating psychiatric disabilities, VA has adopted the Diagnostic and Statistical Manual of Mental Disorders, 4th ed., American Psychiatric Association (DMS-IV). That manual includes a Global Assessment of Functioning (GAF) scale which takes into consideration psychological, social and occupational functioning on a hypothetical continuum of mental illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV). A score of 31-40 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 younger children, is defiant at home, and is failing at school). A 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). A 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 peer or coworkers). See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994. The specified factors for each incremental psychiatric rating are not requirements for a particular rating, but are instead examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, any analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In Mauerhan, the Court rejected the argument "that the DSM-IV criteria should be the exclusive basis in the schedule governing ratings for PTSD." Id. at 443. Rather, distinctive PTSD symptoms in the DSM-IV are used to diagnosis PTSD rather than evaluate the degree of disability resulting from the condition. Although certain symptoms must be present in order to establish the diagnosis of PTSD, as with other conditions, it is not the symptoms but their effects that determine the level of impairment. Id. The evidence for consideration in this case includes VA outpatient treatment records, VA examination reports, employment records, and lay testimony and statements. This appeal stems from the initial grant of service connection. As the Veteran has not challenged the June 27, 2008, effective date of service connection, the relevant question in this matter is the state of his disability for the period beginning on June 27, 2008. 38 C.F.R. § 3.400. The Veteran was afforded a VA examination in February 2009. He indicated that he worked part-time as a waiter and related that he sometimes missed classes and work because he was unable to get out of bed. He noted that he received treatment at VA, but denied any history of psychiatric hospitalizations. The Veteran was very anxious during the interview and occasionally shook and became tearful. A mental status examination found that the Veteran's speech was fluent, logical, coherent, and goal directed, and he was oriented in all spheres. There was some evidence of psychomotor slowing and mild inefficiencies on measures of attention and concentration. He denied having any hallucinations, delusions, and other psychotic symptoms. The Veteran described being very tired and rated his mood as a 3 on a scale of 10. He denied current thoughts of injury toward himself or anyone else; however, he acknowledged passive thoughts of death and reported two prior suicidal attempts. He reported difficulty falling asleep, nightmares, and an inability to fall back to sleep. The Veteran also described restlessness and explained that he had been shaking from anxiety for an extended period. He did not keep weapons because he was concerned what would happen if he had access to one. He indicated that he was nervous in groups, had difficulty keeping track of things, and became distracted easily. He avoided television and coverage of the war. He described himself as a level guy and denied difficulty with temper. He sometimes had trouble getting out of bed and would sit in his room and not want to talk to anyone. The Veteran also stated that he only bathed and dressed if he was going someplace. His girlfriend drove because he was too agitated to drive. The diagnoses at the time of the February 2009 VA examination were PTSD and major depressive disorder, and the GAF score was 45. The examiner explained that the impairment was moderate and noted that Veteran was not employed on a regular basis. He generally had a good relationship with his girlfriend; however, he had very limited contact with his family. He was unable to complete and pass two classes due to poor attendance. He had some impairment in thought processes, as evidenced by difficulty with attention, concentration, and memory. Social judgment did not appear affected. He had significant impairment in mood evidenced by extreme depression and anxiety. The Veteran was afforded another VA examination in April 2010 to assess the severity of his PTSD. The Veteran denied having any past psychiatric hospitalizations, but reported treatment with medication and therapy through VA since April 2008. The Veteran reported having daily, moderate, depressed mood, anhedonia, sleep disturbance, fatigue, feelings of worthlessness, psychomotor retardation, and passive suicidal ideation without intent or plan. He denied having a history of suicide attempts, past violence, or assaultiveness. He lived a very isolated life and reported a loss of all meaningful social and leisure activities. A mental status examination found that the Veteran was casually dressed in disheveled clothes. The examiner noted that the Veteran presented with hand wringing and was restless, tense, and had shaking legs throughout the interview. His speech was soft or whispered, and his attitude was fearful. He had a full affect, and his mood was described as anxious. The Veteran was oriented in all spheres, and his thought process and content were unremarkable. No delusions were noted. The Veteran understood the outcome of behavior and knew he had a problem. He reported having sleep impairment described as interrupted sleep and indicated that he slept two to four hours per night. He denied having any hallucinations or inappropriate behavior. There were no obsessive, ritualistic behaviors, and he denied having panic attacks. There were no homicidal or suicidal thoughts, and his impulse control was described as good. The Veteran was not able to maintain minimum personal hygiene and explained that he took showers on days he has to work, but did not shower or dress on other days. A letter in the file also suggested that his spouse pushed him to engage in hygiene. The Veteran had slight difficulty with dressing and undressing; moderate difficulty with chores, grooming, shopping, bathing, sports, travel and other recreational activities; and severe limitation in driving. The Veteran indicated that he did not get out of bed unless he had to work. The April 2010 VA examiner indicated that the Veteran was incredibly anxious on interview, did not make eye contact, and was shaky and tearful throughout. His recent and immediate memory was mildly impaired. His PTSD symptoms included recurrent intrusive thoughts, dreams, feeling as if the event were recurring, distress at cues, physiological reactivity to cues, avoidance of thoughts, feelings, conversations, activities, places, and people that reminded him of the event, an inability to recall an aspect of the event, diminished interest in activities, feelings of detachment, a restricted range of affect, a sense of foreshortened future, sleep trouble, irritability, difficulty concentrating, hypervigilance, and exaggerated startle response. The symptoms were reported to be moderate-severe and experienced almost daily. The examiner noted that the Veteran worked part-time as security guard and lost about seven weeks due to PTSD and being unable to get out of bed. He also was fired from a prior job due to his repeated absence from work. The diagnoses were PTSD and major depressive disorder, and the GAF score was 42. The examiner indicated that the Veteran had serious impairment in social functioning and moderate-serious impairment in occupational functioning. The examiner also concluded that there was not total occupational and social impairment due to PTSD, but commented that his PTSD did result in deficiencies in judgment, thinking, family relations, work, mood and school. The record reflects that the Veteran has been treated with group and individual therapy at VA outpatient treatment facilities from April 2008 until the present. The treatment reports from these sessions are consistent with the level of symptomatology reported during the compensation examinations summarized above. The predominant symptoms described in these records include difficulty sleeping, nightmares, anxiety (particularly at night), intrusive thoughts, avoidant behavior, social isolation, depression, hypervigilance, restricted affect, and exaggerated startle response. Despite these symptoms, the Veteran was always assessed as being oriented in all spheres, and he was described as having fair to good insight and judgment. None of the VA treatment records document speech abnormalities, and the Veteran always denied delusions and homicidal ideation. The Veteran also always denied prior psychiatric hospitalization. Significantly, in May 2008, the physician noted that the Veteran reported having increased suicidal ideation, bar fights, and arguments with his girlfriend. The physician indicated that the two suicidal gestures occurred three years and one and a half years prior to the date of treatment. The physician indicated that the Veteran was a moderate risk for suicide in the near future given the history of suicidal gestures, sex, and depression but had protective factors, including sobriety, a stable job, and social support. In November 2008, the Veteran reported having panic attacks twice a day and also reported having visual hallucinations in the form of seeing other drivers with weapons, but knowing there was no one there. In January 2012, the physician noted impaired concentration and irritability, and in April 2012, the Veteran indicated he thought of harming himself a little. The Veteran also provided lay statements in support of his claim. In his notice of disagreement, the Veteran explained that he avoided VA, as it would remember things he did not want to think about. He described having anxiety in the dark, increased startle response, and an inability to sleep. He lost a job due to absences and late arrival and explained that sometimes he could not get out of bed. In February 2010, the Veteran's spouse reported that he had suicidal thoughts and indicated that she hid big knives from him. She described sleep deprivation and nightmares, and she related that he had panic attacks at work, depression, anxiety at night and while driving, and a general lack of interest in activities. She reported that his hygiene was getting worse and that she had to remind him to do things such as brush his teeth, shave, and shower. His spouse also described an incident during which she woke up with him hovering over her and she was afraid he could hurt himself or other and not mean to. She described losing friends, explained that he no longer talked to family, and noted that they no longer went on date nights. She gave him small tasks and he could never remember anything. An April 2012 statement from his spouse also continued to describe poor sleep, isolation, increased startle response, an inability to drive, and anxiety in the dark and upon hearing loud noises. She described anxiety and depression and indicated that some days the Veteran could not get out of bed due to exhaustion. She indicated that his school and work suffered which increased his stress level. The Veteran and his spouse also provided testimony at a December 2012 Board hearing. The Veteran described having constant nightmares and reported having suicidal thoughts, but no current attempts. He testified that he had conflicts with his boss and reported difficulty following instructions. He also reported having panic attacks two to three times per month and testified that he had poor sleep and anxiety in the dark. He further indicated that he saw shadows occasionally and described having a temper. The Veteran explained that he lost a job due to PTSD and was currently employed two days per week as a security guard. The Veteran's spouse testified that she had to remind him to get involved in things and described every day as bad. After a thorough review of all of the evidence of record, including the Veteran's hearing testimony, the Board finds that the criteria for an increased evaluation of 70 percent have been approximated for the entire period on appeal. The Veteran, among other things, is virtually isolated and has significant sleep disorders and anxiety, which is worse at night. Additionally, he has presented with impaired memory and concentration and has to be reminded to perform some basic activities of daily living. He also reported having prior suicide attempts, and in April 2012, he reported he had some thoughts of harming himself. The Veteran's PTSD has resulted in anxiety so severe that he physically shakes, avoids eye contact, and is unable to drive. The GAF scores during this period also support an increased rating, as they ranged from 45 to 55, which indicates some moderate symptoms at best and severe impairment at worst. Therefore, in this matter, the Board finds that an increased rating of 70 percent is warranted for the entire rating period. Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). However, the evidence throughout the entire appeal period does not demonstrate total occupational and social impairment to warrant an increased 100 percent evaluation. There is no doubt that the Veteran's PTSD symptoms interfere with his functioning. However, his symptoms do not rise to the level of total occupational and social impairment required for an increased 100 percent evaluation, which is a level of severity so disabling that some of the examples of symptoms include not knowing one's own name or posing a persistent threat of danger to self or others. The records reflect that he was oriented in all spheres, denied delusions, and never presented with impairment of thought process or communication. However, the Veteran's symptoms, including suicidal ideation, sleep difficulty, nightmares, anxiety, depression, restricted affect, and flashbacks, have not been so frequent and disabling as to result in total occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that symptoms contained in rating schedule criteria are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating."). Rather, as described above, the Veteran still retains some occupational and social functioning. The record reflects that he retains relationships with his spouse and continues to work and attend school. The Board also finds it significant that the Veteran has never required inpatient hospitalization or domiciliary care for treatment of his symptoms. While the Veteran had suicide attempts and ideations, he was generally noted to be a low-moderate risk of harm to himself or others during the pendency of the appeal. See June 2008, July 2008, November 2008 VA outpatient treatment records. Similarly, while some memory impairment was noted, he was never noted to have memory loss so severe that he could not remember the names of close relatives, his occupation, or his own name. Additionally, after reviewing the evidence and interviewing and examining the Veteran, the VA examiner in April 2010 concluded the Veteran did not have total occupational and social impairment from his symptoms. Finally, the Veteran's GAF scores do not reflect total occupational and social impairment. Rather, the lowest GAF score noted during the entire appeal period was a 45, which is indicative of serious symptoms. He has never been assessed with scores in the 30s, which would be indicative of behavior considerably influenced by delusions or hallucinations, serious impairment in communication or judgment, or an inability to function in almost all areas. As such, the record does not more nearly approximate a 100 percent evaluation. Based upon the guidance set forth in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether staged ratings are appropriate. In the present case, the Veteran's symptoms have most nearly approximated the 70 percent evaluation throughout the entire appeal period. As described in detail above, the evidence does not more nearly approximate a 100 percent schedular rating at any time to allow for further staged ratings. Extraschedular Rating The Board has also considered whether the Veteran's PTSD with major depression warrants referral for extra-schedular consideration. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the claimant's disability picture requires the assignment of an extra- schedular rating. Id. In this case, the Veteran's symptoms are expressly contemplated by the rating schedule. As outlined above, the Veteran has reported having sleep impairment, nightmares, intrusive thoughts, avoidant behaviors, social isolation, anxiety (worse at night), depression, insomnia, suicidal ideation, irritability, poor concentration, hypervigilance, and exaggerated startle response. Such symptoms are contemplated by the schedular criteria set forth in 38 C.F.R. § 4.130, Diagnostic Code 9411. Although the record notes that the Veteran may lose as much as seven weeks of time at work due to PTSD, the rating criteria also contemplate occupational impairment. Indeed, the schedular criteria for a 100 percent evaluation contemplate symptoms that would result in total occupational impairment. The regulations expressly consider each of these symptoms and further allow for other signs and symptoms of PTSD and depression not expressly listed in the rating criteria which may result in occupational and social impairment. In other words, Diagnostic Code 9411 adequately contemplates all of the Veteran's symptoms. Therefore, the first step of Thun has not been met, and referral for the assignment of an extraschedular disability rating is not warranted. ORDER An initial 70 percent evaluation, but no higher, for PTSD is granted, subject to the law and regulations governing the award of monetary benefits. REMAND The U.S. Court of Appeals for Veterans Claims (Court) has held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if a claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. In the present case, the record reflects that the Veteran previously worked part-time as a waiter and suggests that he lost this job due to significant absences related to his PTSD. The Veteran is currently employed part-time in a security job, but has also reported significant absences. In addition, he submitted paperwork illustrating that he requested leave under the Family Medical Leave Act (FMLA) due to his psychiatric disability. Moreover, during his April 2010 VA examination, he indicated that he felt his PTSD interfered with his ability to maintain a job. In light of the above, the Board finds the Veteran has raised a claim for TDIU. While a claim for TDIU has been raised, the Board notes that entitlement to a TDIU has not been developed or adjudicated by the RO. In this regard, the RO/AMC should send the Veteran a VCAA notice letter for the TDIU claim. This letter should notify the Veteran and his representative of any information, including lay or medical evidence, that was not previously provided and that is necessary to substantiate the TDIU claim. The notice should also indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Moreover, while the record reflects that the Veteran is currently employed, it is unclear whether his current employment constitutes substantially gainful employment. TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). The regulation explains that marginal employment shall not be considered "substantially gainful employment." Marginal employment is defined as employment where 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.; see also Faust v. West, 13 Vet. App. 342 (2000). Marginal employment may also be found in some cases when earned annual income exceeds the poverty threshold, such as cases where there is employment in a protected environment, such as a family business or sheltered workshop. Id. The evidence seems to suggest that the Veteran's current and relatively recent employment may be "marginal employment," given the part-time hours and frequent time missed from work. On remand, the RO should request that the Veteran provide evidence pertaining to his annual income. Additionally, the Board finds that a VA examination is necessary. The Court has held that, in the case of a claim for TDIU, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the service-connected disabilities have on a Veteran's ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). As such, a medical opinion is needed to resolve the issue of entitlement to TDIU. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice and assistance regarding the issue of entitlement to TDIU. 2. Contact the Veteran and request that he provide proof of his annual salary from June 2008 to the present, such as copies of salary statements, wage receipts, W-2s, and/or tax returns for each year. 3. Schedule the Veteran for a Social and Industrial Survey to ascertain if the Veteran's service-connected disabilities alone preclude him from securing and maintaining substantially gainful employment in light of his work history and level of education. The Veteran's claims file should be made available to the examiner and reviewed in connection with the examination. 4. Following the completion of the above, and any other development deemed necessary, adjudicate the claim for entitlement to TDIU. If the claim is denied, he should be provided a Supplemental Statement of the Case and an opportunity to respond before the record is returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or 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 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs