Citation Nr: 1313484 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 10-45 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an initial rating greater than 50 percent prior to June 2, 2011 and 70 percent from June 2, 2011 for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from January 1964 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which granted entitlement to service connection for PTSD and assigned a 50 percent rating, effective from June 26, 2007. The Veteran appealed the initial rating. During the course of the appeal, the RO issued a July 2011 rating decision, which increased the rating to 70 percent, effective from June 2, 2011. Regardless of the RO's actions, the issue remains before the Board because the increased rating was not a complete grant of the maximum benefits available. See AB v. Brown, 6 Vet. App. 35 (1993). Initially, the Board notes that in an April 2009 substantive appeal the Veteran timely appealed both the issues of entitlement to service connection for PTSD and for depression. Concurrent with the February 2010 rating decision granting entitlement to service connection for PTSD, the RO provided the Veteran with a supplemental statement of the case (SSOC) (mistakenly issued as a statement of the case (SOC)) continuing the denial of his claim for entitlement to service connection for depression. In a subsequent conversation with a VA representative in September 2010, the Veteran indicated that he wished to withdraw his claim for entitlement to service connection for depression. The RO thereafter treated the claim as having been withdrawn and did not certify the matter to the Board. While the Board acknowledges that the form of the withdrawal did not meet the requirements of 38 C.F.R. § 20.204 (2012), given the clear intent of the Veteran and the fact that the RO has and the Board will consider all the Veteran's psychiatric symptoms to be attributable to his PTSD in light of the Court's holding in Mittleider v. West, 11 Vet. App. 181, 182 (1998), the Board concludes that there is no prejudice to the Veteran in the RO's failure to certify the issue of entitlement to service connection for depression or for the Board to refrain from further consideration of that claim. The Board also notes the Veteran requested a hearing in his November 2010 substantive appeal form, but he cancelled his hearing or otherwise failed to appear despite proper notice being sent to his last known address. The Veteran has not requested the hearing be rescheduled. Accordingly, the Board deems the Veteran's hearing request withdrawn. In addition, the Board notes that the Veteran claims that his service-connected PTSD renders him unemployable, thus raising a claim for a total disability evaluation based on individual unemployability (TDIU). However, the Board notes the TDIU claim was separately adjudicated in a July 2011 rating decision, at which time entitlement to TDIU was granted. The claims file does not indicate that the Veteran has expressed a desire to appeal the effective date assigned, June 2, 2011, or otherwise indicated disagreement with the rating decision. Therefore, the issue is not on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (noting in a footnote that claims for increased evaluations and TDIU claims may be separately adjudicated). The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. FINDING OF FACT Throughout the appellate time period, the Veteran's PTSD has been manifested by symptoms such as anxiety, depression, nightmares, intrusive memories, avoidance behavior, sleep impairment, irritability, anger outbursts, concentration problems, hypervigilance, diminished interest, and feelings of detachment, all resulting in deficiencies in most areas, but less than total social and occupational impairment. CONCLUSION OF LAW The criteria for a disability rating of 70 percent, but no higher, for PTSD have been met or approximated for the entire appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. In this case, the claim is a "downstream" issue in that it arose from the initial grant of service connection. Prior to the rating decision granting service connection, the RO issued a notice letter in August 2007 that fully satisfied the duty to notify provisions. In addition, a February 2011 letter provided after the initial grant of service connection fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran appears to be an attorney and has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a grant of an increased rating. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private records, specifically treatment at the Vet Center, have been associated with the claims file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate VA examinations in December 2009 and June 2011. The VA examination reports are thorough and supported by the other treatment evidence of record. The examination reports discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination reports also discussed the impact of the disability on the Veteran's daily living. Based on the examinations, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the examination reports in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased Initial Ratings Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2012). 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 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him or her for times since filing his or her claim when his or her disability may have been more severe than at other times during the course of his or her appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). As discussed above, a February 2010 rating decision granted entitlement to service connection for PTSD and assigned a 50 percent rating, effective from June 26, 2007. A subsequent July 2011 rating decision increased the rating to 70 percent, effective June 2, 2011. The Veteran claims the ratings do not accurately depict the severity of his current condition. The General Rating Formula for Mental Disorders provides, in pertinent part: 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 . . . . . . . . . . . . . . . . . . . . . . . 50 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 worklike setting); inability to establish and maintain effective relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or name . . . . . . . . . . . . . . . . . . . . . . . . . 100 38 C.F.R. § 4.130, DC 9411 (2012). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. Additionally, a Global Assessment of Functioning (GAF) score is often used by treating examiners to reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996). A GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). GAF scores ranging between 61 and 70 reflect some 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, and has some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). With respect to the current matter, in November 2006 the Veteran was referred to VA's mental health clinic for evaluation. A May 2007 treatment record noted stress due to his ex-wife's efforts to take his money. The Veteran reported depression and the diagnosis was depression and rule out PTSD. The Veteran received treatment at the Vet Center from July 2007 to December 2007. During an October 2007 psychiatric assessment, he reported intrusive thoughts and nightmares, avoidance behavior, social detachment, anger, and hypervigilance. The Veteran denied suicidal or homicidal ideation for many years, despite intense anger at his ex-wife. He spoke positively about his current wife, but had no contact with his two daughters or ex-wife. That said, he had found some friends recently with similar interests, including music. The assessment was adjustment disorder: mixed anxiety / depression related to divorce / finances with ongoing stressors, as well as chronic PTSD. The treatment provider assigned a GAF score of 45. The Veteran also regularly attended PTSD group therapy. An October 2008 record noted good grooming, normal speech, appropriate affect, no suicidal ideation, or psychotic symptoms. The assessment was PTSD. Ongoing treatment records included similar results. In addition, a September 2009 treatment record noted that on Thursdays he went to dinner with a group of people and they also went to some shows. The Veteran also indicated that he was attending classes at the local university. He denied homicidal or suicidal ideation. The Veteran was afforded a VA examination in December 2009. The examiner noted review of the claims file. The Veteran reported having been involved in PTSD groups for approximately three years, with a diagnosis of PTSD. His current symptoms included: night sweats, physical symptoms, fatigue, and lack of purpose and fun in life. He denied suicidal ideation. The Veteran's first marriage had lasted 35 years and resulted in two children and although he was currently married to his second wife they were struggling. Two days per week he attended college classes, but denied any hobbies. He denied having any friends, but did report enjoying traveling on occasion. When going out, the Veteran would sit in the back or the corner. On examination, there was no impairment of thought process or communication and no delusions or hallucinations. Hygiene was good and mood appropriate. There was no evidence of homicidal ideation and he denied suicidal ideation. Activities of daily living were neglected due to lack of interest. He was fully oriented and long term memory was good, but not short term memory. There was no history of obsessive or ritualistic behavior. Speech was normal. There was a history of impaired impulse control with anger and alcohol abuse. Insight was limited and judgment was fair to good. Other symptoms included intrusive memories, avoidance behavior, diminished interest, feelings of detachment, hyperarousal, irritability, anger outbursts, concentration problems, and hypervigilance. The examiner diagnosed PTSD, alcohol abuse and dependence, and personality disorder not otherwise specified, with narcissistic traits. The examiner assigned a GAF score due to PTSD of 48. In March 2010, the Veteran reported chronic depression, anxiety, anger, irritability, labile mood swings, flashbacks, nightmares, disillusionment, survivor guilt, and social withdrawal. The psychologist diagnosed severe, chronic PTSD and a GAF score of 45. Ongoing treatment records include similar symptomatology and GAF scores. The Veteran was afforded another VA examination in June 2011. The examiner noted review of the claims file. The Veteran reported nightmares, intrusive memories, avoidance behavior, social detachment, depression, and marital problems. The Veteran stated that he had stopped going to university classes, which he had enjoyed, due to his psychiatric problems. The Veteran denied any friends of his own and would socialize only when going out with his wife and her friends. He denied recreational or leisure activities. On examination, there was no impairment of thought process or communication and no delusions or hallucinations. Hygiene was adequate and mood appropriate. There were significant problems with short term memory, which was getting worse. There was no history of obsessive or ritualistic behavior. Speech was normal. The Veteran denied panic attacks, but reported depression and anxiety. He denied impulse control problems. Other symptoms included intrusive memories, nightmares, avoidance behavior, hyperarousal, irritability, and anger outbursts. The examiner diagnosed PTSD and assigned a GAF score of 45. A subsequent June 2011 VA treatment record included a denial of suicidal ideation, plan, or attempts. Another June 2011 VA treatment record demonstrated that on examination the Veteran was fully oriented, with normal thoughts and memories. There was no evidence of hallucinations, delusions, or paranoid ideation. He denied suicidal plans. The Veteran was accompanied by his wife, who was described as "very supportive" and who discussed the effects of the Veteran's PTSD on their marriage. The psychologist indicated that the Veteran's PTSD had worsened over time and assigned a GAF score of 45. The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that more nearly approximates that which warrants the assignment of a 70 percent disability rating throughout the appeal period. See 38 C.F.R. § 4.7 (2012). In reaching that conclusion, the Board notes that throughout the appellate time period the Veteran's symptoms have resulted in a GAF score of 45, which is consistent with serious impairment in social, occupational, or other functioning. Throughout the time period, the Veteran has reported that he has no friends and does not socialize, except with friends of his wife. The Veteran is wholly estranged from his two children and first wife. While the Veteran has remained married to his second wife throughout the appellate time period, the evidence indicates that the relationship has been strained. The Veteran has not worked during the appellate time period, due in large measure to his psychiatric symptomatology. In that regard, while the Board acknowledges that the medical evidence of record indicates that the Veteran stopped working due to issues involving his divorce from his first wife and subsequent arguments over money, as discussed above, the Board will consider all psychiatric symptomatology to be due to his service-connected PTSD for the purposes of this decision. The Board acknowledges the lay and medical notations that the Veteran's psychiatric symptomatology has worsened, but it is unclear from the record whether such worsening occurred during the appellate time period or at some point prior to that period. The primary worsening noted during the appellate time period was that the Veteran stopped attending classes at the local university at some point prior to the June 2011 VA examination. While this denotes a possible worsening of the Veteran's ability to function in a social setting, in light of the consistent GAF scores and psychiatric symptomatology during the appellate time period, the Board finds that the Veteran's psychiatric condition throughout the appellate time period is on par with that contemplated by the higher 70 percent rating. As explained in more detail above, the symptoms throughout the Veteran's treatment and the appellate time period are essentially consistent. For this reason, staged ratings are not applicable. See Fenderson, 12 Vet. App. at 119. Therefore, as explained above, the medical evidence supports the Board's conclusion that a 70 percent rating is warranted for the entire appeal period. However, a rating greater than 70 percent is not appropriate for any period of time on appeal because the Veteran does not have total social and occupational impairment. Although the Veteran clearly has a serious disability, he exhibits few of the symptoms noted as applicable for a 100 percent rating. He does not have 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, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. While the Veteran has expressed great anger at his ex-wife, which he claims medical professionals have equated with homicidal ideation, the medical evidence of record expressly contradicts that conclusion, as the evidence consistently notes the absence of homicidal ideation. As noted above, the Board acknowledges that a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan, 16 Vet. App. at 442; however, as the Court held in Mauerhan, without the examples noted in the rating criteria, differentiating a 50 percent evaluation from a 70 percent evaluation would be extremely ambiguous. By extension to the present case, without the examples, differentiating the 70 and 100 percent ratings would be equally ambiguous. The Board is to consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. If the evidence demonstrates that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate equivalent rating should be assigned. Id. In this case, however, the Board concludes that the Veteran's PTSD symptoms do not cause total occupational and social impairment as contemplated for a 100 percent rating. With respect to the Veteran's occupational impairment, the Board acknowledges that his psychiatric symptoms result in a high level of impairment and possibly total impairment. The Veteran has been unemployed for most or all of the appellate time period and the Veteran has reported that he stopped working due to psychiatric problems associated with his divorce from his first wife and resulting disputes over money. The August 2010 rating decision granting entitlement to TDIU found the Veteran to be unemployable due to a combination of service-connected disabilities, both physical and psychological. That said, the rating decision did not evaluate whether the Veteran was unable to obtain and maintain employment due solely to his PTSD. As such, the Board will not dispute that the Veteran has total occupational impairment. That said, the Veteran clearly does not have total social impairment. While he does have considerable social isolation, he has maintained his second marriage throughout the entire appellate time period and has spoken positively about the relationship on certain occasions. Moreover, treatment records have described her as "very supportive." In addition, while the Veteran asserts that he has no friends of his own, he maintains the ability to socialize with his wife's friends on approximately a weekly basis. Thus, the Veteran does not have total social and occupational impairment sufficient to warrant a total schedular rating for PTSD. He does have some deficiencies in several areas, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 70 percent rating assigned herein. Again, in determining that a rating in excess of 70 percent is not warranted, the Board has considered the Veteran's complaints regardless of whether they are listed in the rating criteria, but for the reasons discussed above concludes that the Veteran's level of social and occupational impairment does not warrant a rating in excess of the currently assigned 70 percent rating. While the Veteran may have some of the criteria for a 100 percent rating, see Mauerhan, 16 Vet. App. at 442, the Board concludes his overall level of disability does not exceed the criteria for a 70 percent rating. In summary, for the reasons and bases set forth above, the Board concludes that an increased rating of 70 percent, but no more, is warranted for the entire appeal period. See Fenderson, 12 Vet. App. at 119. Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected PTSD is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran reports multiple psychiatric symptoms, including anxiety, depression, nightmares, intrusive memories, avoidance behavior, sleep impairment, irritability, anger outbursts, concentration problems, hypervigilance, diminished interest, and feelings of detachment. The current 70 percent rating contemplates these and other psychiatric symptoms. Thus, the Veteran's current schedular rating under DC 9411 is adequate to fully compensate him for his disability on appeal. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an initial rating of 70 percent, but no greater, for PTSD from June 26, 2007 forward is granted, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs