Citation Nr: 1312966 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 05-15 237 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to an effective date prior to December 23, 2003, for the award of service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to an initial disability evaluation in excess of 30 percent for service-connected PTSD between December 23, 2003, and December 2, 2010. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the severity of service-connected disabilities. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had periods of active service from December 1966 to December 1969 and from September 1970 to September 1974. This included time in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the VARO in St. Louis, Missouri. A review of the record shows that by rating decision dated in April 2004, the RO denied the Veteran's application to reopen a claim for service connection for PTSD, because no new and material evidence had been received. The Veteran appealed the denial of the claim. In a February 2007 decision, the Board determined the Veteran had submitted sufficient new and material evidence to reopen his claim of service connection for PTSD. The case was then remanded for further development. By rating decision dated in March 2008, service connection for PTSD was granted. A disability rating of 30 percent was assigned, effective December 23, 2003, the date of receipt of the Veteran's reopened claim. The Veteran and his representative appealed that determination. Additionally, it was claimed that the Veteran was no longer able to work because of the severity of his service-connected PTSD. He was denied TDIU by rating decision dated in March 2009. The case was before the Board in September 2010 at which time an effective date prior to December 23, 2003, for the award of service connection for PTSD was denied. The issues of entitlement to a disability rating in excess of 30 percent for PTSD and entitlement to TDIU were remanded for further development. Thereafter, by Order dated in September 2012, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand with regard to the issue of an effective date earlier than December 23, 2003, for the award of service connection for PTSD. The case is now before the Board for appellate review. FINDINGS OF FACT 1. The Veteran's PTSD is his sole service-connected disability. 2. The Veteran submitted an original claim for service connection for a nervous condition that was received on May 9, 1996. 3. By rating decision dated in December 1996, service connection for PTSD was denied on the basis that the Veteran did not reply to a letter requesting information regarding any inservice stressors. 4. In an undated communication received in February 1997, the Veteran referred to a specific stressful incident in November 1969 in Qui Nhon, Vietnam, when a convoy several minutes behind his vehicle was ambushed and about 19 American soldiers were killed. The Veteran stated that at the time of the incident he was assigned to the 51st Ambulance Company, 43rd Medical Group, 44th Medical Brigade. 5. An October 1997 communication from the U.S. Army & Joint Services Environmental Support Group (JSRRC) (then known as the United States Armed Services Center for Research of Unit Records) ) indicated that available records documented one ambush incident for the month of November on November 14, 1969, in which one driver was slightly injured. 6. By rating decision dated in November 1997, service connection for PTSD continued to be denied on the basis that research of the available personnel records did not support the Veteran's statement that he drove through an ambush area right before an incident when 19 soldiers were killed. 7. A communication from the National Personnel Records Center in St. Louis was received by the Veteran's representative in September 2002 reflecting that a search of medical records from the 91st Evacuation Hospital Qui Nhon, Vietnam, from 1969 to 1971 as well as the Brooke Army Medical Center through 1971 failed to produce any records pertaining to the Veteran. 8. Received on December 23, 2003, was a claim for service connection for PTSD based upon what the representative called was a liberalizing change in the law since the date of the previous denial of service connection made by the RO. 9. A February 2007 Board decision found that new and material evidence had been received to reopen the PTSD claim. The case was then remanded for further development. 10. Service connection was ultimately established for PTSD by rating decision dated in March 2008. In pertinent part, that decision noted that the evidence included a diagnosis of PTSD and stressors that were able to be verified by the JSRRC. 11. Ever since December 2003, the Veteran has had what amounts to severe, but not total, occupational and social impairment because of his PTSD. 12. The Veteran has not been able to maintain gainful employment since 2003 because of the severity of his PTSD. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than December 23, 2003, for an award of service connection for PTSD have not been met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.400 (2012). 2. The criteria for a 70 percent disability rating, but not more, for the Veteran's PTSD from December 23, 2003, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2012). 3. The criteria for TDIU from December 23, 2003, have been reasonably met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhances VA's obligation in terms of notifying and assisting claimants with claims for VA benefits. The VCAA was codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126. The implementing regulations are codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative of any information and medical or lay evidence not of record that is necessary to substantiate the claim, including apprising the Veteran of the information and evidence he is responsible for providing as well as the information and evidence VA will attempt to obtain on his behalf. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). With regard to the claims for a higher initial rating for PTSD and for TDIU, the Veteran is challenging the initial evaluation assigned following the granting of service connection for the disability. In Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006), aff'd. sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), the Court held that in cases, as here, 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 § 5103(a) notice no longer required because the purpose the notice is intended to serve has been fulfilled. Id. at 490-91. Thereafter, once a notice of disagreement has been filed contesting a downstream issue such as initial rating assigned for the disability, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 regarding a rating decision and a statement of the case control as to any further communications with the appellant, including as to what evidence is necessary to establish a well favorable decision with respect to the downstream element of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008). With regard to the claim for an earlier effective date, the Board finds that the Veteran and his representative have actively participated in the processing of his case, and the statements submitted in support of his claims, to include from his attorney in this case, have indicated basic familiarity with the requirements for the benefits sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated. . .that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence was required and that the appellant should have provided it); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). The Veteran and his representative have not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency determination). The Board finds that the duty to assist the claimant in developing his case has been satisfied with respect to the earlier effect date claim. Numerous records are on file, and the Veteran has not identified the existence of any relevant evidence regarding his claim that has not been obtained or requested. The Board notes that, as a general rule, the adjudication of the claim for an earlier effective date is based upon evidence already in the claims folder. The resolution of a claim depends on when certain documents were either received by VA and/or promulgated to the Veteran. Consequently, there is no additional development that can be conducted, or any other records which can be obtained, which would substantiate the Veteran's claims. In view of the foregoing, the Board finds that the duty to notify and assist the Veteran has been satisfied in this case. In sum, the Board finds it difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate his claims. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that the "VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims"); Soyini v. Derwinski, 1 Vet. App. 510, 546 (1991). (observing circumstances as to whether remand would serve any useful or meaningful purpose or result in any significant benefit to the Veteran). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss in detail the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether if the preponderance of the evidence is against the claim, in which event the claim must be denied. Goodman v. Derwinski, 1 Vet. App. 49, 55 (1990). Legal Criteria and Analysis with Regard to an Earlier Effective Date The effective date of the grant of service connection for disease or injury is the day following separation from active duty or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date is the date receipt of claim, or the date entitlement arose, whichever is the later. The effective date of an award based on the claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In this case, the record reflects the Veteran submitted a claim for a "nervous condition" that was received in May 1996. The evidence available at that time included the service treatment records, the report of a VA examination of the Veteran in September 1996, the Veteran's military personnel records, and a letter to the Veteran dated in August 1996 requesting that he submit information relative to his claim. Notation was made that the Veteran did not reply to a letter requesting information that would confirm his inservice stressor. It was noted other evidence of record at that time failed to confirm the presence of a stressor. It was stated that the evidence of record did not establish that a stressful experience occurred. In July 1996, the Veteran submitted a statement in which he reported he had had various psychiatric diagnoses including PTSD. He indicated that since hospitalization in November 1995, he "had learned about PTSD and about why he had so much trouble. . . ." Received in February 1997 was a communication from the Veteran in which he referred to a specific incident that occurred in November 1969 near Qui Nhon in Vietnam. He stated he was the assistant driver of an ambulance that was five minutes ahead of a convoy that was ambushed and 19 American soldiers were killed. He stated that he offered no assistance to foil the ambush out of fear. He indicated at the time he was assigned to the 51st Ambulance Company, 43rd Medical Group, 44th Medical Brigade. A request was made for confirmation of the reported stressor to the then US Army & Joint Services Environmental Support Group (now JSRRC). Daily staff journals were reviewed by the JSRRC and notation was made that they documented one ambush incident occurring on November 14, 1969. The Board notes the daily staff journal for that date reflects that an ambulance was ambushed while being escorted by Military Police going into Qui Nhon. One individual was slightly injured, but no other incident was reported at that time or on any other day in November 1969. Accordingly, by rating decision dated in November 1997, service connection for PTSD was denied. The principal basis for the denial action was that the daily staff journals did not support the Veteran's statement that he drove through an ambush area right before a time when 19 soldiers were killed. It was determined there was no verifiable evidence to show that the Veteran was subjected to an incident or incidents that would cause PTSD. The Veteran submitted a photograph of an individual he stated was the driver of the ambulance he was with when they went to the ambush site. A statement of the case was issued in June 1998 reflecting that the reported ambush in which 19 American soldiers were killed was not verified. The Veteran failed to perfect his appeal with a timely Substantive Appeal following his November 1997 rating decision. See 38 C.F.R. § 20.302(b). Thereafter, the Veteran submitted a request to reopen his previously denied claim for service connection for PTSD in December 2003. The claim was subsequently reopened and granted because new evidence regarding an inservice stressor was obtained, and this provided the necessary criteria for the grant of service connection for PTSD. The Veteran and his representative essentially maintain, however, that service connection for PTSD should be effective from the date of his initial claim that was received back in May 1996. The Veteran's accredited representative has cited to the cases of Vigil v. Peake, 22 Vet. App. 63 (2008) and Mayhue v. Shinseki, 24 Vet. App. 273 (2011) in support of this assertion. With respect to the attorney's contentions, the Board notes that the case law involves the application of § 3.156(c), a specific provision of law allowing for a case to automatically be reopened and allowing for an earlier effective date based upon the date of receipt of the prior final claim when additional service records that existed and were not previously of record become associated with the claims file. From June 10, 1993, to September 2006, 38 C.F.R. § 3.400(q)(2) provided that the effective date for an evaluation and award of compensation based on a claim reopened due to the receipt of new and material evidence in the form of service department records or "degree of evaluation (since it is considered these records were lost or misplaced) or date of receipt of claim on which prior evaluation was made, whichever is later. . . ." 38 C.F.R. § 3.156(c) provided that: Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of jurisdiction. This comprehends official service department records which presumably had been misplaced and have now been located and forwarded to the VA. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. . . . "Read together, §§ 3.156 (c) and 3.400 (q) (2) provided that the effective date for an award of benefits based on newly discovered service department records that were previously unavailable, may relate back to the date of the original claim or date entitlement arose even though the decision on that claim may be final..." Mayhue v. Shinseki, 24 Vet. App 273 (2011), quoting New and Material Evidence, 70 Fed. Reg. 35, 388 (proposed June 20, 2005). Revisions to these records were proposed in June 2005. The purpose was "to clarify longstanding VA rules" "regarding reconsideration of decisions on the basis of newly discovered service departments records" and "to include the substance of current 38 C.F.R. § 3.400(q)(2) in revised Section 3.156(c)" rather than to effect substantive changes. Id. at p.5-7, quoting New and Material Evidence, 70 Fed. Reg. 35,388 (proposed June 20, 2005) and New and Material Evidence, 71 Fed. Reg. 52,455 (September 6, 2006). The proposed revisions became effective on October 6, 2006. From that point until the present, 38 C.F.R. § 3.156(c) has provided as follows: (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) service records that are related to a claimed inservice event, injury, or disease, regardless of whether such records mentioned the Veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) additional service records forwarded by the Department of Defense or the service department to VA anytime after VA's original request for service records; (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. (2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify in obtaining records from the respective service department, the JSRRC, or from any other official source. (3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. Given that these changes were clarifying rather than substantive in nature, the Court has concluded that pre-amended 38 C.F.R. § 3.156 (c), like amended 38 C.F.R. § 3.156 (c) "authorizes an effective date [for a reconsidered claim based on newly discovered service department records] as early as the date of the original claim." Vigil v. Peake, 22 Vet. App. 63, 65 (2008). The Court also held in Vigil that 'the reference to misplaced records in the [pre-amended 38 C.F.R. § 3.156(c)] regulation was intended to be an example of the types of records that might allow a claimant to obtain an effective date prior to the date of reopening under 38 C.F.R. § 3.156(c), and was not limited solely to the misplaced records." 22 Vet. App. at 66. In sum, the 38 C.F.R. § 3.156(c)(1) requirements that the service department records be relevant and existed but have been not associated with the claims file when VA first rendered their final decision on the claim have been satisfied, and the fact that these records were not misplaced is of no consequence. In this case, service connection was established for PTSD on the basis of a competent medical diagnosis of PTSD, and on the reporting of stressful incidents by the Veteran in a statement in May 2006 that he had not previously provided. He referred to a February 1968 incident which four members of his unit went missing north of Tuy Hoa and despite concentrated rescue efforts were never found. He also referred to incidents involving rocket and mortar attacks near Nha Trang in June or July 1968. These stressors have been able to be verified. Unit records are the only type of service records upon which 38 C.F.R. § 3.156(c)(1) applies, and will be considered in this case. The Court is aware that in Mayhue, supra, regardless of what stressful incident was reported at the time of his initial claim, unit number, dates of duty, and location "was always part of the claims folder." In that case "VA's failure to verify his stressor was a result of administrative error in locating his unit records." The Board finds that from a longitudinal review of the evidence of record, the facts in this case are different from that referred to in Mayhue. In this case, the Veteran provided information regarding a reported stressor when he filed his original claim in 1996. He referred to a specific incident during a specific month in a specific location. He could not have been more specific and this was the only incident to which he referred. The VA did all that it could by requesting information from the JSRRC. That facility indicated it was unable to verify the reported stressful incident. Indeed, the Board notes the incident has never been verified. It was not until a statement received in 2006 that the Veteran provided information regarding two other inservice incidents upon which he had not previously discussed with VA. These incidents were able to be verified. In other words, the current stressors the Veteran relates are different from the one he referred to at the time of his initial claim. With that incident not being verified and never having been verified, the Board finds that the current effective date for the award of service connection for PTSD is the proper one. Increased Rating for Psychiatric Disability Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity resulting from 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. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. §§ 3.102, 4.3. Certain diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). If the disability has different and distinct levels of severity during the pendency of the claim for a higher rating for the disability, then the Board must "stage" the rating to compensate the Veteran for this variance, irrespective of whether it is an established or an initial rating. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Mental disorders are evaluated under a General Rating Formula found at 38 C.F.R. § 4.130. In addition, the 4th 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. § 4.30. When evaluating a mental disorder, the evaluation must be based on all the evidence of record bearing 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). However, when evaluating the level of disability for 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 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, mild memory loss (such as forgetting names, directions, recent events). The next rating of 50 percent is provided for 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-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. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, human 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, or 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 work-like setting); and an inability to establish and maintain effective relationships. The maximum schedular rating of 100 percent requires total occupational and social impairment due to such symptoms as: Gross impairment of thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.126, Code 9411. The use of the phrase "such symptoms as" followed by a list of examples, provides only guidance as to the severity of symptomatology contemplated for each rating. Use of this terminology provides consideration of items listed as well as other symptoms and, most importantly, contemplates the effect of those symptoms on the claimant's occupational and social functioning. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). It is therefore not necessary that the Veteran have all, or even some, of the symptoms specifically listed to satisfy the requirements for a particular rating. In determining whether the Veteran meets the criteria for a higher rating, the Board must consider whether he has deficiencies in most of the following areas: Work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). Psychiatric examinations often include the assignment of a Global Assessment of Functioning (GAF) score. A GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on the hypothetical continuum of mental health illness." There is no question that the GAF score and interpretations of that score are "considerations in rating a psychiatric disability." See Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score, like an examiner's assessment of the severity of the condition at the time of a particular evaluation, is not completely dispositive or determinative of the evaluation to be assigned; 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 to be assigned. 38 C.F.R. § 4.126(a); VAOPGCPREC 10-95. The higher the score, the higher the ability of the Veteran to function. According to the DSM-IV, a GAF score of between 41 and 50 is assigned when there are "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment of social, occupational or school functioning (e.g., no friends, unable to keep a job)." Scores between 51 and 60 are indicative of moderate symptoms (e.g., flattened 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). A score of 61 to 70 indicates some mild symptoms productive of some difficulty in social, occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships. With this in mind, the Board refers to the pertinent evidence of record. That evidence includes reports of VA outpatient visits on periodic occasions in early 2000. At the time of one such VA outpatient visit in May 2007, the Veteran referred to various symptoms associated with PTSD, to include startle reaction, keeping to himself, irritability, difficulty getting along with others. The examiner stated he had attended PTSD groups for some time. The staff psychiatrist in May 2007 indicated that the disturbed sleep, irritability, isolation, difficulty with social interactions, and restricted range of interests resulted in the GAF score of 39. At the time of another visit in November 2007, complaints included depression, irritability, nightmares, flashbacks and social isolation. It was noted because of his irritability and depression, he had not been able to work at a steady job since 2000. He stated that even prior to that time he had difficulty holding a job because he could not get along with co-workers and supervisors. On current examination, appearance was described as normal. The Veteran maintained good eye contact. Speech and thought process were also normal. Mood was abnormal. Mood was generally euthymic, except when the Veteran talked about the justification of the interview. The Veteran was properly alert. Concentration, immediate recall, memory, and insight and judgment were all described as good. Diagnoses included PTSD. There was no Axis II diagnosis. It was noted that no previous GAF score had been entered. He was given a current GAF score of 56. A VA psychiatric examination was accorded the Veteran in October 2009. It was noted this was the first rating examination for PTSD purposes that was accorded the Veteran. The Veteran described his chief complaint as being unable to work. He also referred to difficulties in functioning due to depression, paranoia, hyperarousal, impaired sleep, impaired interpersonal relationships, and nightmares. The Veteran was still attending PTSD group therapy. He denied any history of psychiatric hospitalization or past suicide attempts. A review of the medical records did show hospitalization for PTSD in August 1997 at which time the Veteran came in because he was afraid of losing control. However, he did not refer to that hospitalization. The Veteran gave a lengthy psychosocial history and a lengthy report of his experiences in service. He was described as appropriately dressed. Grooming and hygiene were good. He was alert and oriented. No flights of gross motor impairments were observed. However, at times, he moved comfortably in his chair and appeared nervous. Thought processes were clear and goal-directed. Speech was articulate and clear, and within normal limits. Memory was also normal. Attention and impulse control appeared within normal limits. Affect at times was incongruent with his mood, which was euthymic with some nervous (inappropriate) laughter and nervous motor movements. Insight and judgment were good. Psychological testing was accomplished. The examiner noted that the depression inventory was administered with the Veteran achieving a score of 34. The examiner stated this placed him in the severe disturbance category for depression. The examiner stated that overall the Veteran was experiencing symptoms of PTSD that included intrusive nightmares, social isolation, hyperarousal, irritability, hypervigilance, exaggerated startle response. The examiner stated these symptoms were causing some "moderate" impairment in the Veteran's social functioning. The examiner further opined that "based on the data and self report during the interview, it is more likely than not that this Veteran meets the diagnostic criteria for PTSD, and that his symptoms were having a moderate to severe impact on his occupational functioning and at least a moderate impact on his interpersonal/social functioning." The Axis I diagnoses were: PTSD; cannabis abuse; tobacco dependence; and alcohol abuse, in sustained remission, per patient's report. The Veteran was given a current GAF score of 51. The record also includes the report of VA outpatient psychiatry visit on December 3, 2010. At that time it was stated the Veteran was continuing to have symptoms consistent with PTSD. The only time he reportedly left home now was to go to therapy or to shop for essentials. He and his wife more or less stayed out of each other's way. It was noted the Veteran's anger prompted him to isolate himself. His reflection caused him to worry about the staying power of his anger and resentment and led to more isolation. He was still attending group therapy sessions, but the examiner's long-term treating psychiatrist stated that his conflicts were longstanding and economic factors made it difficult for him to attend on a more regular basis. This lent to a more supportive than restorative therapeutic approach. The examiner opined that in the Veteran's current state "it was quite unlikely that the patient would be able to obtain or maintain gainful employment." The psychiatrist gave the Veteran a GAF score of 37. The record reflects the report of this visit led to a decision review officer decision dated in February 2012 in which the disability for the PTSD with depression was increased to 100 percent effective that day, December 3, 2010. Based on a longitudinal review of the pertinent evidence of record, the Board finds that the overall symptom picture most nearly approximates the criteria for a disability rating of 70 percent, but not more, for the entire time frame between 2003 and the date of the VA outpatient visit on December 3, 2010. The Board notes that although the GAF scores varied during those years between 2003 and 2010, the holding in Mauerhan emphasizes that the GAF score is a guideline not a directive. What is most important is the impact of the symptoms, whatever they may be, on the Veteran's occupational and social functioning. A review of the record reflects the Veteran has not been gainfully employed for many years. He has also encountered social impairment on account of his PTSD, is evidenced by the repeated mention that he does not socialize much. On the whole, the Board concludes that, particularly with the resolution of reasonable doubt in the Veteran's behalf, that he has had severe occupational and social impairment since 2003. However, there has been no showing during the years between 2003 and 2010 of the presence of total occupational and social impairment. The Veteran has been described as appropriately groomed, as having good insight, memory, and judgment, and as not being impaired in thought processes and communication. During those years there was no indication that he exhibited persistent delusions or illustrations, grossly inappropriate behavior, persistent danger of hurting himself or others, disorientation, or memory loss, many of the symptoms associated with the assignment of a total schedular rating. Accordingly, the Board finds that no more than a 70 percent disability evaluation, an evaluation that the Board notes is indicative of significant social industrial impairment, is warranted for the Veteran's psychiatric disorder during the entire appeal period. The evidence of record between 2003 and 2010 does not show that the symptoms, either alone or collectively, have resulted in such reduced reliability and productivity so as to warrant the assignment of the maximum schedular rating of 100 percent. Referral for extraschedular consideration is not appropriate because the schedular criteria are explicitly based on social and industrial impairment resulting from symptoms which, if not listed, are comparable to the type and degree of the symptoms with their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (1992). Therefore, the rating criteria are adequate, and extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). TDIU Entitlement to a total rating based for compensation on individual unemployability (TDIU) is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). With resolution of all reasonable in the Veteran's favor, a TDIU is warranted because of the occupational impairment imposed by his PTSD. Therefore, the claim of TDIU is granted. The Board notes that in order to establish entitlement to TDIU because of the service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.41, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration will be given to the Veteran's level of education, special training, and previous work experience in arriving at its conclusion, but not to his age or to impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; VanHoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for TDIU provides both objective and subjective criteria. Hatlestad, supra. The objective criteria provide for a total rating when there is a single disability, or a combination of disabilities that result in a 100 percent schedular evaluation. Subjective criteria provide for a TDIU when, due to service-connected disability, a Veteran is unable to secure or follow a substantially occupation, and has a single disability rated at 60 percent or more, or at least one disability rated at 40 percent or more or additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16. In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). As the Veteran is now rated at 70 percent disabling from 2003, the statutory criteria have been met as of that date. The Veteran has not worked throughout the course of the appeal. He is severely disabled because of his service connected psychiatric disability. The Board resolves all doubt in favor of the Veteran and grants TDIU, as of December 23, 2003. ORDER Entitlement to an effective date prior to December 23, 2003, for the award of service connection for PTSD is denied. This portion of the appeal is denied. An initial disability rating of 70 percent, but not more, for PTSD from December 23, 2003, to December 2, 2010, is granted. This portion of the appeal is allowed. A TDIU from December 23, 2003, is granted. This portion of the appeal is also allowed. ____________________________________________ CHRISTOPHER MURRAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs