Citation Nr: 1308773 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 09-46 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a thoracolumbar spine disorder, to include as secondary to service-connected ventral hernia, status post ventral hernia repair. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected ventral hernia, status post ventral hernia repair. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 4. Entitlement to an increased disability rating greater than 20 percent for a ventral hernia disability, status post ventral hernia repair. 5. Entitlement to an initial disability rating greater than 30 percent for posttraumatic stress disorder (PTSD) with major depression from August 15, 2007, to March 15, 2010. 6. Entitlement to an initial disability rating greater than 70 percent for PTSD with major depression on or after May 1, 2010. REPRESENTATION Appellant represented by: David L. Huffman, Attorney WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty service from August 1979 to April 1988 in the United States Air Force and from August 1989 to May 1990 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2008 and September 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In August 2010, the Veteran testified at a hearing before a Decision Review Officer (DRO hearing). In November 2012, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the claims folder. In addition, during the course of the appeal for the increased rating issues, the Veteran has submitted evidence of unemployability due to service-connected disabilities. As such, it follows that a request for TDIU was reasonably raised. See 38 C.F.R. § 3.156(b); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability). See also Mayhue v. Shinseki, 24 Vet. App. 273, 280-282 (2011); Norris v. West, 12 Vet. App. 413, 421 (1999); Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Board observes that, at this juncture, the RO has already developed and adjudicated the TDIU issue (see, e.g., January 2011 VCAA letter), as well as adjudicated it (see August 2012 rating decision). Therefore, the issue of entitlement to a TDIU has been added to the present appeal. In addition, the Veteran has asserted that he is entitled to an earlier effective date for the 70 percent rating for his PTSD. See October 2010 Veteran's statement. It appears that the most appropriate characterization of this issue is whether the Veteran is entitled to an initial disability rating greater than 30 percent for PTSD from August 15, 2007, to March 15, 2010. However, to the extent that the Veteran may have intended to file a claim for an earlier effective date, the issue is not currently before the Board. Therefore, the matter is referred to the RO for appropriate action. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the increased rating claims being decided herein. The issues of entitlement to service connection for GERD and a thoracolumbar spine disorder and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO in Huntington, West Virginia, for further development and consideration. FINDINGS OF FACT 1. As of August 15, 2007, the Veteran's ventral hernia disability, status post ventral hernia repair, is manifested by a "large" postoperative ventral hernia. 2. As of August 15, 2007, the Veteran's PTSD with major depression is manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. He does not have total occupational and social impairment. CONCLUSIONS OF LAW 1. Effective August 15, 2007, the criteria are met for an increased disability rating of 40 percent, but no greater, for a ventral hernia. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.21, 4.114, Diagnostic Code 7339 (2012). 2. Effective August 15, 2007, the criteria are met for an initial disability rating of 70 percent, but no greater, for PTSD with major depression. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With regard to the initial and increased rating claims, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in October 2007, September 2008, November 2008, and January 2011. Those letters satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his initial service connection and subsequent increased rating claims; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, the VCAA letters provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In summary, the Veteran has received all required VCAA notice in this case. Moreover, the initial rating issue for PTSD arises from disagreement with the initial evaluation following the grant of service connection for PTSD with major depression in a September 2009 rating decision. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8- 2003 (December 22, 2003). As to the timing of VCAA notice, the Court and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued all required VCAA notice prior to the January 2008 and September 2009 rating decisions on appeal. Thus, there is no timing error. With respect to the duty to assist, the RO has obtained the Veteran's service treatment records, service personnel records, VA inpatient and outpatient treatment records, and private medical evidence as identified by the Veteran. For his part, the Veteran has submitted personal statements, argument from his attorney, private medical evidence, Social Security Administration (SSA) records, and hearing testimony. The Veteran was also afforded VA examinations in November 2007, August 2009, September 2010, and August 2012 VA examinations to ascertain the current severity of his PTSD and ventral hernia disabilities. The Board finds that the VA examinations obtained in this case are adequate, as they are predicated on a review of the claims file and all pertinent evidence of record as well as on a physical examination and fully address the rating criteria that are relevant to rating the disabilities in this case. The need for a more contemporaneous examination occurs only when the evidence indicates that the current rating may be incorrect or when the evidence indicates there has been a material change in the disability. See 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83; VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The August 2012 VA examinations are very recent. Moreover, there is no suggestion that the evidence is not sufficient to evaluate the disabilities. In this regard, overall the evidence does not establish that there has been a material change in the severity of the Veteran's service-connected disabilities beyond the 40 and 70 percent higher ratings being granted. In addition, the Veteran, who is represented by an attorney, has not requested a new VA examination for his PTSD and ventral hernia disabilities, despite having the opportunity to do so at the November 2012 hearing. Therefore, a new VA examination to rate the severity of his disabilities is not warranted. With regard to the November 2012 videoconference hearing and the August 2010 DRO hearing, in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge or DRO who chairs a hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal; and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2); Procopio v. Shinseki, No. 11-1253 (October 16, 2012). At both hearings, the Veterans Law Judge, DRO, the Veteran, and the attorney for the Veteran outlined the issues on appeal and engaged in a discussion as to the substantiation of the claims. Overall, the hearings were legally sufficient, and there has been no allegation to the contrary. Moreover, the Veteran and his attorney have not requested another hearing. The Board is therefore satisfied that the RO has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). Governing Laws and Regulations for Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). Ventral Hernia The Veteran's ventral hernia disability, status post ventral hernia repair, is currently assigned a 20 percent evaluation pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7339 (ventral hernia postoperative). Historically, the Veteran had in-service hernia repair surgery in the early 1980s. The 20 percent rating has been in effect since August 15, 2007, which was the date the RO received the Veteran's increased rating claim. The Veteran's entire history is reviewed when assigning a disability evaluation per 38 C.F.R. § 4.1. However, 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, 58 (1994). The Court has 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, 509-510 (2007). That is to say, the Board must consider whether there have been times when his ventral hernia disability has been more severe than at others and rate it accordingly. Under Diagnostic Code 7339, a 0 percent (noncompensable) rating is warranted for postoperative wounds of a ventral hernia that are healed and result in no disability, with the use of a belt not indicated. A 20 percent rating is warranted for a small postoperative ventral hernia, not well supported by belt under ordinary conditions, or healed ventral hernia or postoperative wounds with weakening of abdominal wall and indication for a supporting belt. A 40 percent rating is warranted for a large postoperative ventral hernia, not well supported by belt under ordinary conditions. The maximum, 100 percent rating is warranted for a massive persistent postoperative ventral hernia, with severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall so as to be inoperable. See 38 C.F.R. § 4.114 (2012). The evidence of record is consistent with a 40 percent rating for the ventral hernia disability. 38 C.F.R. § 4.7. In making this determination, the Board has reviewed VA treatment records dated back to the 1990s, as well as VA examinations dated in November 2007, September 2010, and August 2012. In addition, the Board has also considered the Veteran's lay personal statements, hearing testimony, and argument by his attorney. This medical and lay evidence reveals a large postoperative ventral hernia indicative of a 40 percent rating. See 38 C.F.R. § 4.114, Diagnostic Code 7339. Specifically, the September 2010 VA examiner noted that the Veteran's ventral hernia has been growing "bigger" since the time of the last November 2007 VA examination, and it was tender to touch. The Veteran reported that surgery was cancelled because his surgeon indicated that any more surgery would make the condition worse. The August 2012 VA examiner also noted the Veteran's credible complaints that physically demanding tasks, such as lifting, were prevented by the hernia. It was again noted that the hernia has gotten larger over the years. On examination, a "large" ventral hernia was assessed, although there was no indication for a supporting belt. VA treatment records also document tenderness and pain. The Board has also considered whether a rating in excess of 40 percent is warranted. However, there is no evidence that the Veteran requires a supporting belt or that the hernia is not well supported by a belt under ordinary conditions. The Board does acknowledge that the August 2012 VA examiner indicated that there was "massive, persistent, severe diastasis of recti muscles," and the condition was "inoperable" with the diastasis of recti muscles. This symptomatology would normally support a maximum 100 percent rating under Diagnostic Code 7339. However, the November 2007 VA examiner previously stated that the Veteran's particular diastasis recti of the abdominal muscle was not caused by or the result of the ventral hernia surgery. Instead, the hernia most likely developed in service due to preexisting diastasis recti. The diastasis recti is a "common and normal condition and not something that requires surgical correction." Although the Veteran contends that his condition is inoperable, with regard to the Veteran's lay statements and hearing testimony, overall, the clinical observations of the VA examiners throughout the appeal are more probative of the degree of impairment and carry more weight. Accordingly, the Board finds that the evidence supports an increased disability rating of 40 percent, but no higher, for the service-connected ventral hernia. 38 C.F.R. § 4.3. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has also considered whether a staged rating is appropriate. However, the Veteran's symptoms for ventral hernia have remained fairly constant at a 40 percent level from August 15, 2007; therefore, a staged rating is not appropriate. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's ventral hernia is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Indeed, the size of the hernia, weakening of muscles, and need for support are all contemplated by criteria. As discussed above, there is a higher rating available, but the Veteran's disability is not productive of such manifestations. The Board also observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his hernia, and there is nothing in the record to indicate that the Veteran's disability causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected ventral hernia under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). PTSD with Depression In the September 2009 rating decision on appeal, the RO granted service connection for PTSD with major depression. The Veteran's service-connected PTSD is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130 (2012). The Veteran's disorder is evaluated by "staged ratings" based upon the facts found during the period in question. Fenderson v. West, 12 Vet. App. 119, 126 (1999). That is, from August 15, 2007, to March 15, 2010, the Veteran's PTSD is rated as 30 percent disabling. From March 15, 2010, to May 1, 2010, a temporary total 100 percent disability rating is in effect for PTSD under 38 C.F.R. § 4.29 for temporary hospitalization beyond 21 days. This issue is currently not on appeal. As of May 1, 2010, the Veteran's PTSD disability is rated as 70 percent disabling. The Veteran seeks a higher initial rating for the 30 percent and 70 percent time periods. Mental disorders are evaluated under the general rating formula for mental disorders, a specific rating formula presented under 38 C.F.R. § 4.130. In addition, the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed within 38 C.F.R. § 4.130 (2012). When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A 30 percent disability rating is appropriate when 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is appropriate 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. Id. A 70 percent rating is in order when 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 inability to establish and maintain effective relationships. Id. A 100 percent rating is in order 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; and memory loss for names of close relatives, own occupation, or own name. Id. In evaluating the evidence, the Board has also noted various Global Assessment of Functioning (GAF) scores contained in the DSM-IV, which clinicians have assigned. A 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 DSM-IV at 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95. GAF scores may be considered in assigning the appropriate disability rating, but they are not the dispositive element in rating the level of impairment. See Caluza, 7 Vet. App. at 506. The higher the GAF score, the higher the overall functioning of the individual is. For instance, a score of 31-40 represents "[s]ome 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)." DSM-IV at 46-47. A score of 41-50 illustrates "[s]erious 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 score of 61-70 illustrates "[s]ome 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 higher score of 51-60 represents "[m]oderate 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. The evidence of record is consistent with an initial 70 percent rating for PTSD with major depression throughout the entire appeal period, effective from August 15, 2007. 38 C.F.R. § 4.7. Certain reported signs and symptoms are indicative of the 70 percent rating criteria. See 38 C.F.R. § 4.130. The Board has also considered additional symptomatology not specifically addressed in the 70 percent criteria under the General Rating Formula for Mental Disorders. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In making this determination, the Board has reviewed VA mental health treatment (outpatient and inpatient) records dated from 2007 to 2010; VA mental health examinations dated in August 2009, September 2010, and August 2012; private inpatient and outpatient psychiatric treatment records; SSA disability records; hearing testimony; attorney argument, and lay statements from the Veteran. The medical and lay evidence of record documents signs and symptoms including near-continuous depression and anxiety; frequent suicidal ideation and occasional attempts; at time, the compromised ability to function independently; occasional hallucinations and delusions; few friends; no motivation; unprovoked irritability and anger with aggressiveness; impaired impulse control; social isolation and avoidance; sleep disturbances; feelings of hopelessness and worthlessness; paranoia; hypervigilance;, nightmares and insomnia; flashbacks; poor memory and concentration; difficulty adapting to stressful circumstances at work; and, psychiatric symptoms described at times as "severe." The Veteran takes several psychiatric medications for his PTSD, and he receives individual and group psychotherapy. He has also had several instances of voluntary and involuntary inpatient hospitalization for acute psychotic treatment for one to two weeks when he was delusional and hallucinating and had several loaded weapons. Overall, consideration of these symptoms reflects occupational and social impairment with deficiencies in most areas, which is indicative of a 70 percent rating. See 38 C.F.R. § 4.130. There is also some evidence the Veteran uses alcohol and drugs to self-medicate his psychiatric symptoms, although this is not entirely supported by some of the VA examination reports. See e.g., June 2008 private Fairfield Psychological Evaluation; October 2008 VA psychiatry note; November 2008 VA discharge summary; August 2009 VA psychological examination; September 2010 and August 2012 VA psychiatric examinations. In any event, when it is not possible to separate the effects of the service-connected condition versus a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the Veteran's favor, thus attributing such signs and symptoms to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52,698 (1996)). Consequently, in the present decision, the Board will consider all the Veteran's psychiatric symptoms without attempting to separate his symptomatology between his PTSD / depression and substance abuse disorders. Another important factor is that many, but not all, of the GAF scores in these records are indicative of "serious" or "major" impairment. See e.g., June 2008 Fairfield Psychological Evaluation (GAF score of 31); July 2008 VA inpatient note (GAF score of 50); February 2009 VA psychiatric note (GAF score of 50); January 2010 VA history and physical (GAF score of 45); January 2010 VA inpatient note (GAF score of 45); June 2010 VA social work note (GAF score of 48); July 2011 and August 2011 private inpatient reports (GAF scores of 25 and 55). Although the VA examiner's use of this dcore is not dispositive of the rating that should be assigned, it is nonetheless probative evidence to assist in making a determination. 38 C.F.R. §§ 4.2, 4.6. There is also the fact that the Veteran entered VA residential programs for PTSD and substance abuse on various occasions throughout the appeal because he could not effectively cope with his symptoms unless he was in a structured environment. With regard to work, the Veteran last worked in January 2008 in a factory. He has experienced difficulty with authority and dealing with co-workers. The Veteran remarked that he was isolated at work and could not focus or concentrate due to PTSD. In summary, the Veteran clearly has difficulty adapting to stressful circumstances in a work setting due to his PTSD, which is another criterion for a 70 percent rating. The Board acknowledges that the evidence of record often fails to reveal certain other criteria indicative of a 70 percent rating. In addition, at times his GAF scores are in the 50s, and VA counseling and treatment records document some sporadic improvement. However, a Veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Rather, the criteria ("such symptoms as") provides guidance as to the severity of symptoms contemplated for each rating in addition to permitting consideration of other symptoms particular to the Veteran. They are not all-encompassing or an exhaustive list. Id. With resolution of all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's symptoms more nearly approximate the criteria for a 70 percent rating for service-connected PTSD since August 15, 2007. 38 C.F.R. § 4.3. In making this determination, the Board notes that there is no discernible difference in the severity of his PTSD with major depression from August 2007 to the present. Any fluctuations in the severity of his disability were episodic or temporary in nature. Nevertheless, the evidence of record does not warrant an initial 100 percent rating. 38 C.F.R. § 4.7. The medical and lay evidence of record is not indicative of total occupational and social impairment, which is required for a 100 percent rating. 38 C.F.R. § 4.130. That is, although there is some evidence that may be suggestive of total occupational impairment due to PTSD, the evidence of record does not reveal total social impairment. The Veteran does exhibit social withdrawal with a rather isolated lifestyle. He prefers to be mostly alone, and he has been divorced three times. However, the Veteran is still able to maintain a relationship with his mother with whom he lives, as well as his siblings, and he socializes with one of his children. In addition, the Veteran can still participate in individual and group psychotherapy with mixed results, and he can still function and communicate with people, albeit with significant limitations. He is also competent to manage his affairs, and he is usually able to take care of basic activities of daily living. The Veteran occasionally goes to church and fishes, and he volunteers for the American Legion. Such facts provide clear evidence against a finding of total social impairment. The Board acknowledges that several very severe symptoms were present at times. See 38 C.F.R. § 4.130. In this regard, the Veteran has exhibited occasionally gross impairment in thought processes or communication; instances of delusions or hallucinations (not persistent); grossly inappropriate behavior; danger of hurting himself; and, disorientation to time or place. See e.g., July 2011 and August 2011 private inpatient hospitalizations. On a few select occasions, his GAF scores were in the 20s and 30s. However, as outlined above, when viewing the totality of the evidence of record, the Veteran's level of occupational and social impairment is more than adequately reflected in the 70 percent rating currently assigned. 38 C.F.R. § 4.10. Accordingly, the Board finds that the evidence supports an initial disability rating of 70 percent, but no higher, for the service-connected PTSD with major depression throughout the entire appeal period, effective from August 15, 2007. 38 C.F.R. § 4.3. The RO previously staged the Veteran's service-connected PTSD with major depression. However, the Board finds an initial 70 percent rating for PTSD with major depression is warranted throughout the entire appeal period effective from August 15, 2007. It is not necessary to "stage" the Veteran's rating, as his psychiatric symptoms have been fairly consistent at the 70 percent level. Fenderson, 12 Vet. App. at 126. Finally, there is no evidence of exceptional or unusual circumstances to warrant referring the case for extraschedular consideration. 38 C.F.R. § 3.321(b)(1). The General Rating Formula for Mental Disorders reasonably describes the Veteran's disability level and symptomatology with contemplation of the relative degree of occupational and social impairment. Therefore, because the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. In other words, because the Veteran's disability picture is contemplated by the Rating Schedule, there is no exceptional disability picture that would warrant consideration of factors such as marked interference with employment or frequent periods of hospitalization. Thun, 22 Vet. App. at 116. See also 38 C.F.R. § 3.321(b)(1). The medical and lay evidence of record fails to show anything unique or unusual about the Veteran's PTSD with major depression that would render the schedular criteria inadequate. The Veteran's psychiatric symptoms are contemplated in the 70 percent rating assigned, including his degree of occupational and social impairment. Neither the Veteran nor his attorney has never argued for an extraschedular rating under § 3.321(b). ORDER Effective August 15, 2007, an increased 40 percent disability rating for a ventral hernia disability is granted. Effective August 15, 2007, an initial 70 percent disability rating, but no higher, for PTSD with major depression is granted. REMAND The Board finds that additional development is necessary before the service connection and TDIU claims can be adjudicated. First, the RO must obtain a clarifying medical opinion in connection with the service connection claims. The Veteran has specifically contended that his service-connected ventral hernia aggravates his lumbar spine and GERD conditions. See August 2010 DRO hearing testimony at pages 16-18. The November 2007 VA examiner opined that the Veteran's current GERD and lumbar spine conditions were "not caused by" or "the result of" his service-connected ventral hernia. The Court has held that "not due to," "not caused by," or "not related to" a service-connected disability is insufficient to address the question of aggravation (i.e., a worsening) under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 449 (1995). Therefore, an additional opinion is necessary to address the aggravation theory of secondary service connection. Second, as noted, a claim for a TDIU is raised by the record. However, the TDIU claim is inextricably intertwined with the service connection claims that are also in appellate status. That is, if the service connection claims were granted, this would directly impact the adjudication of the TDIU claim. See 38 C.F.R. § 4.16(a). For this reason, the issue of service connection for a spine disorder and GERD must be resolved prior to resolution of the claim for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, a remand is required for the RO to adjudicate the inextricably intertwined issues. Accordingly, the service connection and TDIU issues are REMANDED for the following action: 1. The RO should obtain any outstanding treatment records from the VAMCs in Huntington, Kansas City, and Cincinnati. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 2. After securing any additional evidence, the RO should refer the Veteran's claims folder to the November 2007 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's thoracolumbar spine disorder and GERD. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should opine as to whether it is at least as likely as not that the Veteran's current GERD and thoracolumbar spine disorder is permanently aggravated or worsened by his service-connected ventral hernia. (Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened.) (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for the opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board 3. The RO should then review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. The RO should also complete any further development deemed necessary. 4. Thereafter, the RO should consider all of the evidence of record, and readjudicate the service connection and TDIU issues on appeal. If the benefit sought is not granted, the RO should issue a Supplemental Statement of the Case and allow the Veteran and his attorney an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. 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). These claims 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