Citation Nr: 1311220 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 08-00 239A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD), from September 26, 2005 to November 24, 2007. 2. Entitlement to a rating in excess of 30 percent for PTSD, from February 1, 2008. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to PTSD, from September 26, 2005 to November 24, 2007. 4. Entitlement to TDIU due to PTSD, from February 1, 2008. REPRESENTATION Appellant represented by: John F. Dowd, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran had active military service from January 1966 to January 1968. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2006 rating decision in which the RO, inter alia, granted service connection and assigned an initial 10 percent rating for PTSD, effective September 26, 2005 (the date of the claim for service connection). In May 2006, the Veteran filed a notice of disagreement (NOD) with the initial rating assigned. In December 2007, the RO issued a statement of the case (SOC), and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in January 2008. Because the claim for PTSD involves a request for a higher initial rating following the grant of service connection, the Board has characterized the claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). During the pendency of this appeal, in an April 2007 rating decision, the RO granted a higher, 30 percent initial rating for PTSD from September 26, 2005. Later, in an August 2008 rating decision, the RO granted a temporary, 100 percent rating during a period of hospitalization from November 25, 2007 to January 31, 2008 (see 38 C.F.R. § 4.29), and thereafter continued a 30 percent rating for PTSD from February 1, 2008. As higher ratings for this disability are assignable before November 25, 2007, and after February 1, 2008, and the Veteran is presumed to seek the maximum available benefit, the Board has characterized the appeal pertaining to the assigned rating for PTSD as encompassing both matters as set forth on the title page. Id; AB v. Brown, 6 Vet. App. 35, 38 (1993). In a May 2009 rating decision, the RO denied entitlement to TDIU. The Veteran did not appeal that decision. In August 2009, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO; a transcript of that hearing is of record. In December 2009, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC continued to deny the claims (as reflected in a May 2011 supplemental SOC (SSOC)) and returned these matters to the Board for further appellate consideration. In a decision dated January 2012, the Board denied the Veteran's claim for an initial rating greater than 30 percent for the time period prior to November 25, 2007, and from February 1, 2008. At that time, the Board acknowledged that the Veteran had granted his power-of-attorney in favor of Patrick C.H. Spencer, II in August 2011. In February 2012, Attorney Spencer submitted a written withdrawal of his representation of the Veteran for all VA claims. In the meantime, the Veteran appealed the Board's January 2012 decision to the United States Court of Appeals for Veterans Claims (Court). Before the Court, the Veteran was represented by private attorney Kara L. Campbell of Finkelstein and Partners, LLP. By order dated November 2, 2012, the Court remanded the claims to the Board pursuant to the terms of a Joint Motion for Remand. In December 2012, the Veteran submitted a properly completed VA Form 21-22 (Appointment of Individual as Claimant's Representative) providing his power of attorney to John F. Dowd, Esquire, of Finkelstein and Partners, LLP. Also in December 2012, the Veteran's attorney submitted new evidence which has not been considered by the RO. The Veteran's attorney specifically requested to exercise their right of RO review of this evidence in the first instance. See 38 C.F.R. § 20.1304(c) (2012). This evidence includes opinion that the Veteran is unemployable due to service-connected PTSD, which once again raises the issue of the Veteran's entitlement to TDIU benefits as a component of his claim for a higher initial rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As addressed below, the Board finds that the Veteran may be awarded higher compensation benefits for certain periods of time during the appeal period. However, the Veteran has also exercised his right of RO review of the evidence submitted in December 2012 in the first instance. In light of the above, the Board's intent below is to award those benefits which are supported by the evidence currently of record, and to limit the adjudication to preclude any adverse determinations. A review of the Virtual VA electronic records storage system does not reveal any additional documents which are not associated with the paper claims file. The Board's decision granting a 70 percent rating and a TDIU for PTSD from February 8, 2008 is set forth below. The matters of the Veteran's entitlement to an initial rating in excess of 30 percent for PTSD for the period from September 26, 2005 to November 24, 2007, a rating greater than 70 percent for PTSD from February 1, 2008, and to TDIU due to PTSD for the period from September 26, 2005 to November 24, 2007 are addressed in the remand following the order; these matters are being remanded to the RO. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each matter herein decided have been accomplished. 2. Since February 1, 2008, the Veteran's PTSD has resulted in deficiencies in work, thinking and mood due to passive suicidal ideations, intrusive thoughts and distressing dreams, avoidance behavior, a sense of foreshortened future, anhedonia, sleep disturbance, irritability, impaired concentration and focus, hypervigilance, exaggerated startle response, social isolation, generalized anxiety with weekly panic attacks, emotional numbing, distrust of people, anger outbursts, decreased libido, difficulty in adapting to stressful circumstances and an inability to establish and maintain work relations; collectively, these symptoms suggest deficiencies in most major areas. 3. As of February 1, 2008, the Veteran's PTSD has met the percentage requirement for award of a TDIU, and competent, probative evidence indicate that he has been unable to obtain and maintain substantially gainful employment due to his PTSD at least since that time. CONCLUSIONS OF LAW 1. With resolution of all reasonable doubt in the Veteran's favor, the criteria for a 70 percent rating for PTSD, from February 1, 2008, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2012). 2. With resolution of all reasonable doubt in the Veteran's favor, the criteria for a TDIU due to PTSD, from February 1, 2008, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The Board is specifically limiting its adjudication to awarding immediate increased compensation where warranted, and deferring any adjudicative action which may be adverse to the Veteran. For these reasons, the Board finds that all notification and development actions needed to fairly adjudicate the matters herein decided have been accomplished. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the award of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. Historically, the Veteran was granted service connection for PTSD in an April 2006 rating decision, the subject of this appeal. A 10 percent rating was assigned, effective September 26, 2005, the date of his claim for service connection. In an April 2007 rating decision, the RO granted a higher, 30 percent initial rating for PTSD from September 26, 2005. Later, in an August 2008 rating decision, the RO granted a temporary, 100 percent rating during a period of hospitalization from November 25, 2007 to January 31, 2008, and thereafter continued a 30 percent rating for PTSD from February 1, 2008. As such, the issues on appeal concern the propriety of the rating assigned for the Veteran's PTSD both prior to November 25, 2007 and from February 1, 2008, as well as whether any further staged rating is warranted. The 30 percent rating for the Veteran's PTSD has been assigned pursuant to Diagnostic Code 9411. However, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. Under the formula, a 30 percent rating is assigned 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, that if there is only one such disability, this disability shall be ratable as 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Factors to be considered will include the veteran's employment history, educational attainment and vocational experience, but marginal employment is not to be considered substantially gainful employment. Id. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. Entitlement to TDIU, however, is predicated upon an inability to secure and follow "substantially gainful employment." 38 C.F.R. § 4.16(a). For purposes of 38 C.F.R. § 4.16(a), marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. Consideration shall be given in all claims to the nature of the employment and the reasons for termination. Id. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. At the outset, the Board notes that it will limit its discussion to the time period from February 1, 2008 to the present. The remaining issues will be addressed in the remand below to preserve the Veteran's right of RO review of new evidence in the first instance. Historically, the Veteran filed his service connection claim for PTSD in September 2005. The VA clinic records in 2005 included the Veteran's report of being self-employed in carpentry. He had quit his last job with an employer after he threw a hammer at his boss in anger. His GAF scores ranged from 52 to 60. A January 26, 2007 VA mental health management note references the Veteran's report of increased PTSD symptoms. He had not been working. The examiner discussed with the Veteran that working long hours was a type of PTSD coping strategy, and that it was not uncommon to experience an increase of PTSD symptoms when being forced to slow down. The Veteran entered the VA PTSD Residential Rehabilitation Program in November 2007. Upon admission, the Veteran underwent psychological testing wherein he reported ongoing intrusive thoughts and distressing dreams related to combat events. He had avoidance symptoms characteristic of PTSD with frequent suppression of traumatic memories and avoidance of traumatic event reminders. The Veteran described a restricted range of affect, feelings of diminishment from others, a sense of foreshortened future and diminished interest in activities. He reported chronic symptoms of increased arousal which included sleep disturbance, irritability, concentration difficulty, hypervigilance, and exaggerated startle response. He further reported mild depressive symptoms. The findings were summarized as presenting a history and clinical picture of severe, chronic PTSD. The Veteran completed the VA PTSD Residential Rehabilitation Program in January 2007. He was assigned a GAF score of 45 upon discharge. Thereafter, the Veteran's VA clinic records continued GAF scores of 45 from March to June 2008. He described isolating himself more, and being unable to deal with his frustrations. He reported that the only time that he got out of the house was for group therapy, or when made to by his girlfriend. On VA Compensation and Pension (C&) examination in August 2008, the Veteran reported ongoing PTSD symptoms of frequent intrusive memories and nightmares, irritability, startle, hypervigilance, and avoidance of military topics. He described his symptoms as having improved since the inpatient PTSD intervention, and he no longer performed a perimeter check at night. He described his mental health functioning as a 5 on a scale from 1 to 10. The Veteran also described feeling less depressed absent any serious depressive symptoms or newer vegetative symptoms. At times he could feel mistrustful, but he did not experience paranoia. He had some generalized anxiety and occasional panic attacks as well as some obsessive thinking. He was able to get approximately 6 hours of sleep per night. He last worked in 2006, and was receiving Social Security "retirement" money. He described having stopped work due to knee problems and some irritability. He lived alone in a trailer, and was capable of performing all activities of daily living. He enjoyed spending time with his girlfriend who lived nearby. On mental status examination, the Veteran presented as casually dressed and groomed. He appeared generally fit. Speech was articulate. Thought processes were logical and goal oriented. His motor functioning was grossly intact. He was estimated to have at least average intellect and being a reasonable historian. The Veteran had difficulty at times maintaining eye contact. He appeared slightly anxious. He seemed to have difficulty with focus and concentration. The Veteran showed good orientation skills, math skills, and long-term memory skills. His visual motor, visual spatial, language and comprehension, and organization and planning skills were grossly intact. The Veteran denied inappropriate behavior or any overt psychotic symptoms. The examiner assigned a GAF score of 60, and noted that the Veteran's PTSD signs and symptoms caused an occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks, but that he generally demonstrated satisfactory functioning with regard to routine behavior, self care, and conversation. By letter dated September 2008, a VA attending psychiatrist from the VA PTSD Residential Rehabilitation Program, Dr. M., described the Veteran as suffering from severe, chronic PTSD with symptoms in all domains, which included avoidance, emotional numbing, social isolation, hypervigilance, increased startle response, agitation/irritability, intrusive thoughts, insomnia and nightmares. This examiner opined that the Veteran's PTSD rendered him unable to find and maintain employment, and that it was improbable that the Veteran would be able to maintain gainful employment in the future. The report of an October 2008 VA mental health consultation with Dr. B. reflects the Veteran's report of returning nightmares which included dreams of suffocation. He isolated from others, and had been declining offers from a female friend to attend a movie. The Veteran reported his regret of an unwillingness to talk more about his PTSD disability to a VA C&P examiner. An October 2008 letter from Dr. B. described the Veteran has having intrusive recollections, nightmares, insomnia (sleeping 2-3 hours per night), irritability, having to remove all guns from the home due to fear of use during a fit of rage, social anxiety, and avoidance due to hypervigilance, exaggerated startle response and anxiety around crowds. It was reported that medication and group therapy had only provided a moderate impact on the Veteran's symptoms. The examiner indicated his opinion that the Veteran's symptoms warranted an increased rating. Witness statements received in October 2008 describe the Veteran as experiencing flashbacks, mostly at night, which impaired his sleep. He had been observed sleeping during the day due to lack of sleep at night, and the Veteran used alcohol to assist with sleeping. The Veteran did not trust people, and demonstrated anger outbursts for no apparent reason. He became distressed when attempting to fix items, and did not finish projects. He was described as having no patience dealing with people. The Veteran tended to forget that he had visitors at his home, and was easily startled. He did not attend social events because he could not tolerate crowds. Another statement from the Veteran's former spouse described a past history of crying spells, nightmares, easy startle response, alcohol use, an inability to relax, and daytime nightmares. In February 2009, the Veteran attended a mental health consultation in the VA clinical setting with a new mental health therapist. The Veteran presented on-time and was appropriately groomed. He denied thought of harming himself or others. In general, the Veteran did not appear to be gravely disabled. A GAF score of 51-55 was provided. The report of another mental health consultation in February 2009 with Dr. B. notes the Veteran to be well-groomed with a polite disposition and shy demeanor. He denied psychosis as well as suicidal ideation (SI) and homicidal ideation (HI). His nightmares and tossing/turning at night had decreased with medication usage. He had been staying active with walking and exercising at home. The Veteran maintained supportive relationships with other veterans. He maintained a low-cost lifestyle to keep his stress level down. However, he felt "grumpy" most of the time. The record of an April 2009 VA mental health consultation with Dr. B. references the Veteran's report of isolating in his home 2 to 3 days a week. He was intolerant of the neighborhood children, and was still reliving the image of witnessing a neighbor's attempted suicide by hanging. On VA C&P examination in March 2009, the Veteran described symptoms of weekly nightmares, sleep disturbances, hyperarousal and avoidance behaviors, irritability, anger, panic attacks once a week, and intrusive thoughts. He reported a lack of motivation, sadness, low energy, and depression. He also reported getting together with friends from his therapy group once per week. On mental status examination, the Veteran was assigned a score of 22 out of 30, which was in the mildly impaired range. The examiner described the Veteran as neatly and casually dressed. He was cooperative with a mildly anxious mood, and had difficulty with eye contact. Speech was normal and without pressure, thought processes were goal-directed and logical, and the Veteran was oriented to date, place, and time. The examiner observed no inappropriate behavior and noted the Veteran could maintain activities of daily living, including hygiene. Thought processes and communication were not impaired, but social functioning was impaired due to symptoms of hypervigilance and avoidance. Despite this, it was noted that the Veteran had been in a relationship with his girlfriend for six or seven years, and that he got together with friends once or twice per week. There were no remissions during the past year, and medication and therapy were noted to manage the Veteran's symptoms. The examiner assigned a GAF score of 58 and concluded that there was an occasional decrease in work efficiency or intermittent periods of the inability perform occupational tasks, but generally satisfactory functioning. On June 2009 VA mental health visitation, the Veteran reported an increase in nightmares and thoughts related to his combat experience. He expressed much discomfort and anxiety when talking about a stressor event. He continued to experience PTSD symptoms of anger, avoidance, sleep disturbances, social anxiety and little interest or pleasure in doing things. A GAF score of 51 was provided. During subsequent VA mental health consultation with Dr. B. in June 2009, the Veteran described awakening after 2 hours from nightmares or night sweats with a poor quality of sleep. He isolated at home, and refused invitations to go shopping due to crowds. In a July 2009 letter, Dr. B. reported that he had been treating the Veteran since January 2008. Dr. B. described the Veteran as continuing to manifest PTSD symptoms as outlined in the October 2008 letter. However, Dr. B. elaborated that the Veteran's PTSD symptoms were persistent, chronic and had a significant impact on his functioning, to include the ability to seek and maintain regular employment. At his Board hearing in August 2009, the Veteran testified to nightmares which occurred 3 to 4 times a week. He had instances of awakening from his sleep hitting items. He reported that his girlfriend refused to sleep in the same bed. When awakened, he looked out the windows and made sure his doors were locked. He slept about 2 to 3 hours per night, and possibly 5 hours on a good night. He experienced flashbacks during the day prompted by helicopter sounds, and noted that he lived near the Air Force Academy as well as an Air Force base. He felt angry and mad most of the time. He had learned to control his anger, and no longer kept guns in his house. He went shopping in the morning to avoid being near crowds. The Veteran described being startled easily. He had suicidal thoughts on bad days. In a decision dated November 2009, the Social Security Administration (SSA) assessed the Veteran as being unable to engage in any substantial gainful employment solely due to PTSD since July 1, 2007. The evidence reviewed include the report of an evaluation by a State agency reviewing psychiatrist who had found the Veteran to have marked limitations in his ability to interact appropriately with the general public, and moderate limitations in his ability to maintain attention and concentration for extended periods, in his ability to work in proximity to others without distraction, in his ability to complete a normal workday without interruption from psychologically based symptoms, in his ability to perform at a consistent pace without an unreasonable length of rest periods, and in his ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. The SSA administrative law judge also reviewed the September 2008 letter by Dr. M., as well as the October 2008 and July 2009 letters from Dr. B. In addition, Dr. B. provided a mental residual functional capacity assessment which found that the Veteran had marked limitations in his ability to accept instructions and respond appropriately to criticism from supervisors, in his ability to maintain attention and concentration for extended periods, in his ability to perform activities within a schedule, in his ability to maintain regular attendance and be punctual with customary tolerances, in his ability to sustain an ordinary routine without special supervision, and in his ability to work in coordination with or in proximity to others without being distracted by them. The Veteran also demonstrated moderate limitations in his ability to get along with coworkers and peers without distracting them or exhibiting behavioral extremes. Dr. B. noted that the evaluation was conducted based upon the Veteran's current treatment and review of prior treating VA professionals. In a February 2010 letter, Dr. B. opined that the Veteran was totally and permanently disabled due to PTSD. The report of a March 2010 VA mental health consultation notes that the Veteran endorsed symptoms consistent with PTSD which included nightmares/night terrors, irritability, avoidance, intrusive thoughts, decreased libido, isolation and little interest in doing things. On April 2010 mental health consultation, Dr. B. assigned a GAF score of 49. The report of a June 2010 mental health consultation with Dr. B. references the Veteran's report of getting into an argument with 2 friends as well as his brother. He still experienced nightmares and night sweats. He had Vietnam thoughts pop into his head all of the time. He had a positive depression screen endorsing having little interest or pleasure in doing things, and feeling down, depressed or hopeless for more than half his days. In October and November 2010, the Veteran was assigned GAF scores of 50 in the VA clinic setting. In January 2011, the Veteran was assigned a GAF score of 48. On VA C&P examination in April 2011, the Veteran described continued PTSD symptoms of intrusive recollections several times per week, sleep disturbance and nightmares most nights of the week, crowd avoidance but the ability to attend matinee movies and restaurants, easy startle, flashbacks and passive suicidal ideations. He had recently done some more travelling. He denied significant depressive symptoms, neurovegetative symptoms, morbid preoccupations, active suicidal ideations, grossly inappropriate behavior, active homicidal ideation, overt psychotic symptoms or paranoia. He described seeing his girlfriend regularly, and being able to perform activities of daily within his physical limitations. The Veteran reported getting between 4 to 6 hours of sleep per night, taking walks with his girlfriend, occasionally fishing, and doing some travelling. He described being sensitive to noises outside of his trailer. On mental status examination, the Veteran presented as casually dressed and groomed. His mood was neutral, his speech was articulate, his thought processes were logical and directed, and his motor functioning was intact. The Veteran was estimated to have at least average intelligence and was a reliable historian. The Veteran reported minor deficits in memory and concentration, although orientation and compatible skills were grossly intact, as was language and comprehension. The Veteran was able to maintain daily activities and was found capable of managing financial affairs. It was noted that the Veteran lived alone, but that his girlfriend lived in near proximity and that they saw each other regularly. The examiner noted the Veteran stopped working in 2006 due to physical problems and is in receipt of SSA benefits. The diagnosis was chronic PTSD of mild to moderate severity. A GAF score of 59 was assigned. The examiner opined that the Veteran's symptoms could cause an occasional decrease in work efficiency or periods of inability perform occupational tasks, but that he was generally functioning satisfactorily. The examiner indicated the Veteran had the ability to perform at least simple work in a loosely supervised environment. In a December 2012 letter, Dr. B. reiterated the Veteran's PTSD symptoms reported in prior letters. At this time, Dr. B. recommended the Veteran be evaluated with a 100 percent rating with unemployability. The evidence of records reflects that the Veteran has endorsed PTSD symptomatology of ongoing intrusive thoughts and distressing dreams related to combat events, avoidance symptoms with suppression of traumatic memories, a sense of foreshortened future, diminished interest in activities, sleep disturbance, irritability, concentration difficulty, hypervigilance, exaggerated startle response, social isolation, generalized anxiety with weekly panic attacks, emotional numbing, distrust of people, anger outbursts, decreased libido and passive suicidal ideations. He has occasionally reported lack of motivation, sadness, low energy, and depression. The Veteran's mental status examinations have been primarily been significant for disturbances of mood and affect. He has demonstrated difficulty with maintaining eye contact, focus and concentration. Otherwise, the Veteran has been described as maintaining adequate hygiene, and having no significant deficits of speech, thought process, motor functioning, orientation skills, math skills, long-term memory skills, language and comprehension, organization skills and planning skills. The Veteran has consistently denied inappropriate behavior or any overt psychotic symptoms. The record also includes witness statements reflecting personal observations of the Veteran having sleep difficulty with nightmares, experiencing flashbacks, being trustful of people, having anger outbursts for no apparent reason, being unable to complete started projects, having no patience dealing with people, being easily startled, and not attending social events due to an inability to tolerate crowds. The above-mentioned evidence indicates that the Veteran's PTSD results in disturbance of affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective social relationships, and weekly panic attacks which serve as examples for a 50 percent rating under Diagnostic Code 9411. The Veteran has also demonstrated passive suicidal ideations, nighttime perimeter checking after early awakening from sleep, and difficulty in adapting to stressful circumstances which serve as examples for a 70 percent rating under Diagnostic Code 9411. The evidence presented before the Board also contains conflicting assessments between the VA C&P examiners in August 2008, March 2009 and April 2011 and the VA clinicians, particularly Drs. M. and B. The VA examiners have generally described the Veteran's PTSD as being mild to moderate in severity which would cause an occasional decrease in work efficiency or periods of inability perform occupational tasks, but otherwise generally functioning satisfactorily. These evaluations are expressed in GAF scores ranging from 58 to 60. On the other hand, Drs. M. and B. have described the Veteran as manifesting severe, chronic PTSD which prevents him from being able to maintain gainful employment. These evaluations are expressed in GAF scores ranging from 45 to 49. In an evaluation of mental residual functional capacity for SSA, Dr. B. described the Veteran as having marked limitations in most aspects of employability. Other VA clinicians who have less experience evaluating the Veteran in the clinical setting have provided GAF scores ranging from 48 to 55. Additionally, an SSA examiner who reviewed the Veteran's records found that he demonstrated marked limitations in his ability to interact appropriately with the general public, and moderate limitations in most other aspects of work relations. The Board observes that the evaluations and observations by the VA examiners and the VA clinicians both appear to be equally valid assessments. Notably, however, the VA C&P examination reports do not directly discuss the assessments provided by Drs. M. and B. which tends to lower the probative value of the overall examination findings. In finding that the Veteran was unemployable due to PTSD, the SSA employed the treating physician rule which assigned greater probative weight to the findings of Drs. M. and B. VA is not bound by the treating physician rule, see Winsett v. West, 11 Vet. App. 420, 424-25 (1998), but there is probative value to be recognized in assessments provided by clinicians intimately knowledgeable of the patient. For example, the record reflects disparities regarding extent of sleep impairment reported by the Veteran to his VA clinicians and the VA C&P examiners. The Veteran has an established relationship with Dr. B. but not the VA C&P examiners, and has discussed with Dr. B. his unwillingness to speak about his PTSD disability with the VA C&P examiners. Taking all of this evidence into consideration, the Board places greater probative weight to the assessments provided by Drs. M. and B. regarding the overall impairment caused by the Veteran's PTSD disability. These physicians describe deficiencies in work, thinking and mood with difficulty in adapting to stressful circumstances and an inability to establish and maintain work relations due to marked limitations in most work activity areas. Overall, the Board finds that the Veteran's PTSD more closely approximates the criteria for a 70 percent rating since his release from the PTSD program in January 2008 with deficiencies in work, thinking and mood due to passive suicidal ideations, intrusive thoughts and distressing dreams, avoidance behavior, a sense of foreshortened future, anhedonia, sleep disturbance, irritability, impaired concentration and focus, hypervigilance, exaggerated startle response, social isolation, generalized anxiety with weekly panic attacks, emotional numbing, distrust of people, anger outbursts, decreased libido, difficulty in adapting to stressful circumstances and an inability to establish and maintain work relations. The 70 percent rating assigned for PTSD from February 1, 2008 renders the Veteran eligible for consideration of a schedular TDIU rating under 38 C.F.R. § 4.16(a). As addressed above, Drs. M. and B. have opined that the Veteran is unable to obtain and maintain substantially gainful employment as a result of his PTSD. Resolving reasonable doubt in favor of the Veteran, the Board places greater probative weight to these opinions than the VA C&P examiners. As such, the Board finds that the Veteran's PTSD has rendered him unable to obtain and maintain substantially gainful employment since at least February 1, 2008. Therefore, a TDIU due to PTSD, from February 1, 2008, is also granted in favor of the Veteran. At this time, in light of the request for RO review of the December 2012 letter from Dr. B. in the first instance, the Board will defer consideration of the Veteran's entitlement to a schedular 100 percent rating under Diagnostic Code 9411. ORDER An initial 70 percent rating for PTSD, from February 1, 2008, is granted. An award of TDIU, from February 1, 2008, is granted. REMAND In January 2013, the Veteran's representative submitted a December 2012 letter from Dr. B. which has not been considered by the RO. The Veteran's representative elected to have the RO review this evidence in the first instance. The remaining issues on appeal, therefore, are remanded to the RO for readjudication. 38 C.F.R. § 20.1304(c) (2012). The Board next notes that the record includes medical opinions which opine that the Veteran's PTSD has rendered him unable to obtain and maintain substantially gainful employment, which haves served as the basis for the Board's award of a schedular TDIU rating under 38 C.F.R. § 4.16(a) from February 1, 2008. These opinions do not provide the onset date for unemployability; however, as indicated, SSA has awarded disability benefits solely due to PTSD effective July 1, 2007. On remand, the RO must consider whether the criteria for referral of an extra-schedular rating under 38 C.F.R. § 3.321(b), or an extra-schedular TDIU rating under 38 C.F.R. § 4.16(b), for the time period from September 26, 2005 to November 24, 2007 have been met. Prior to adjudicating the remaining claims on appeal, to ensure that all due process requirements are met, the RO should also give the Veteran opportunity to provide additional information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim for a TDIU due to service-connected lumbar spine disability. Accordingly, these matters are hereby REMANDED for the following action: 1. The RO should associate with the claims file all relevant records of the Veteran's VA treatment since January 8, 2011. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. 2. The RO should furnish to the Veteran and his attorney a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims remaining on appeal that is not currently of record. The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, the RO should obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should adjudicate the issues of entitlement to an initial rating in excess of 30 percent for PTSD for the period from September 26, 2005 to November 24, 2007, entitlement to a rating greater than 70 percent for PTSD from February 1, 2008, and entitlement to TDIU due to PTSD for period from September 26, 2005 to November 24, 2007 in light of all pertinent evidence and legal authority. The RO must consider whether the criteria for referral of an extra-schedular rating under 38 C.F.R. § 3.321(b), or an extra-schedular TDIU rating under 38 C.F.R. § 4.16(b), for the time period from September 26, 2005 to November 24, 2007, have been met. 6. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his attorney an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs