Citation Nr: 1315311 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 10-34 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD) from July23, 2008 to April 29, 2009, and to a rating higher than 50 percent since April 30, 2009. 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1965 to April 1967. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for adjustment disorder with mixed anxiety and depressed mood with posttraumatic features, which had been claimed as PTSD, and assigned an initial 30 percent rating for this disability retroactively effective from July 23, 2008, the date of receipt of the claim. In April 2009, in response, the Veteran filed a statement that, in relevant part, requested a higher rating for his service-connected adjustment disorder. But rather than interpreting that statement as a timely notice of disagreement (NOD) with the initial rating that had been assigned for this disability, pursuant to 38 C.F.R. § 20.201 and Fenderson v. West, 12 Vet. App. 119 (1999), the RO instead treated his statement as an entirely new claim for an increased rating for this disability. In a June 2009 decision, the RO assigned a higher 50 percent rating for this disability retroactively effective as of April 30, 2009, also changed the characterization of this disability entirely to PTSD. A finding of incompetency additionally was proposed. After receiving additional evidence, the RO readjudicated the claim for a higher rating for the PTSD later that same month, but confirmed and continued the 50 percent rating. In September 2009, the Veteran submitted another statement along with still additional evidence, continuing to request a rating higher than 50 percent for his PTSD, but also a TDIU. But, again, although filed within a year of the last rating decision, the RO treated his statement as an entirely new claim rather than as submission of new and material evidence concerning an existing and still pending claim pursuant to 38 C.F.R. § 3.156(b). In a subsequent February 2010 decision the RO denied both a rating higher than 50 percent for the PTSD and a TDIU. Because, however, the Veteran's April and September 2009 statements - especially when liberally construed - should have been interpreted as a timely NOD and new and material evidence filed in connection with a pending claim, he timely appealed the rating initially assigned for his PTSD. See Fenderson, 12 Vet. App. at 125-26 (when a Veteran timely appeals an initial rating, VA must consider whether to "stage" the rating to compensate him for times since the effective date of his award when the disability may have been more severe than at others). Moreover, because he since has received a higher 50 percent rating for this disability, albeit no greater rating, he has received what amounts to is a "staged" rating. So the issue before the Board as concerning this claim whether he was entitled to an initial rating higher than 30 percent from July23, 2008 to April 29, 2009, and whether he has been entitled to a rating higher than 50 percent since April 30, 2009. See Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute an NOD under the law), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming the claimant desired appellate review, meeting the requirement of § 20.201 was not an onerous task because an NOD need not contain any magic words or phrases). As support for his claims for a higher rating for his PTSD and for a TDIU, the Veteran testified at a videoconference hearing in October 2011 before the undersigned Veterans Law Judge (VLJ) of the Board. Immediately after the hearing, the Veteran submitted a supporting medical opinion contemporaneously dated in October 2011 discussing the litany of symptoms associated with his PTSD, so reason for assigning a higher rating for this disability, and indicating he resultantly is unemployable because of this disability so entitled to a TDIU. He also submitted a copy of a PTSD questionnaire that he earlier had completed in August 2011, but that he and his representative were uncertain was in the file. They waived the right to have the RO initially consider this additional evidence as the agency of original jurisdiction (AOJ), preferring instead to have the Board consider it in the first instance. See 38 C.F.R. § 20.1304(c) (2012) (any pertinent evidence accepted directly at the Board must be referred to the AOJ for initial review unless this procedural right is waived by the appellant). The Board also has since, in April 2013, advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In this decision the Board is granting both a higher 70 percent rating for the PTSD and a TDIU. In years past, if a Veteran received a 100 percent schedular rating for his service-connected disability, the issue of entitlement to a TDIU became moot since a Veteran could not have a 100 percent schedular rating while concurrently having a TDIU. 38 C.F.R. § 4.16(a); VAOGCPREC 6-99 (June 7, 1999), 64 Fed. Reg. 52375 (1999). Other precedential decisions also discussed this interplay. See, e.g., Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Bowling v. Principi, 15 Vet. App. 1 (2001). Essentially, VAOGCPREC 6-99 held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU, requiring dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). There is the reverse situation here, however, as the Board is granting a TDIU rather than a 100 percent schedular rating for the PTSD. Regardless, in view of the Court's decision in Bradley v. Peake, 22 Vet. App. 280 (2008), which took a position contrary to the one reached in the OGC precedent opinion, the General Counsel took action to withdraw that prior opinion. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC), which is contrary to the holdings in VA O.G.C. Prec. Op. No. 6-99. VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C.A § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award of SMC under 38 U.S.C.A. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. See Bradley at 294; see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (the logic of Bradley suggests that, if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 1114(s) if VA finds the separate disability(ies) support a TDIU independent of the other 100 percent disability rating). SMC is payable at the housebound (HB) rate where the Veteran has a single service-connected disability rated as 100-percent disabling and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Subsection 1114(s) requires that a disabled Veteran, whose disability level is determined by the Rating Schedule, must have at least one disability that is rated at 100 percent in order to qualify for the SMC provided by that statute. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render him unemployable and thus entitled to a TDIU based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Partly for these reasons, the Board is remanding the issue of entitlement to a rating higher than 70 percent for the PTSD, and not instead finding this claim moot with the granting of the TDIU. This issue is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. For the entire period of this appeal, so effectively since July23, 2008, the Veteran's PTSD has caused occupational and social impairment with deficiencies in work, social, family relations, judgment, thinking, and mood, due to such symptoms as near-constant depression and anxiety, frequent panic attacks, nightmares, flashbacks, and intrusive thoughts, isolative behavior, and impaired memory and concentration. 2. PTSD is his only adjudicated service-connected disability, but as a result of this decision it will now be rated even higher - as 70-percent disabling. 3. The competent and credible evidence indicates his service-connected PTSD is so severe as to preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. CONCLUSIONS OF LAW 1. The criteria have been met for a higher 70 percent rating for the PTSD since the filing of the claim for service connection for this condition on July23, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.126-4.130, Diagnostic Code (DC) 9411 (2012). 2. The criteria also are met for a TDIU. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) The VCAA provides that VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of the evidence (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and, (3) that he is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should be provided prior to an initial decision on the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of this notice. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date. See also 38 U.S.C. § 5103(a) (West 2002 & Supp. 2011). So compliance with the first Quartuccio element requires notice of all five of these elements of the claim, including the "downstream" disability rating and effective date elements. See id., at 486. But a VCAA notice error is not presumptively prejudicial, even when shown to have occurred, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In cases where service connection has been granted and an initial disability rating and effective date have been assigned, notice under section 5103(a) is no longer required because the purpose that the notice was intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. Thus, because service connection for PTSD was granted, VA's notice obligation with respect to the issue of entitlement to a higher initial evaluation for this disability is fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). In any event, the record reflects that the originating agency provided the Veteran with the notice required under the VCAA and under Dingess by letters mailed on July 31, 2008, May 1, 2009, and September 17, 2009. Instead of issuing an additional VCAA notice letter in this situation, which concerns the "downstream" issue of the rating assigned for the disability, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved. And this has been done; the Veteran has received an SOC and an SSOC discussing the downstream disability rating element of his claim, citing the applicable statutes and regulations and discussing why higher ratings were not assigned. See Dunlap, 21 Vet. App. at 119 (2007); VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). VA also has a duty to assist him in fully developing these claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011). This duty includes assisting him in obtaining evidence that might tend to support these claims, such as his service treatment records (STRs) and other pertinent treatment records, VA and private, as well as providing him an examination or obtaining a medical opinion when needed to make a decision on the claims. See id. The duty to assist has been satisfied. His STRs, service personnel records, and post-service medical records have been obtained and associated with the claims folder for consideration, and he has not alleged that any other outstanding records were needed to decide his claims. He also have been afforded four VA PTSD examinations, in October 2008, May 2009, October 2009, and July 2011. Thus, as there is no indication or allegation that any other relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002). Procedural Due Process As already alluded to, the Veteran testified before the undersigned VLJ of the Board during an October 2011 videoconference hearing. Under 38 C.F.R. § 3.103(c)(2), it is the responsibility of the presiding hearing officer to explain fully the issues and suggest the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's duties under section 3.103(c)(2) are twofold. First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. Here, the outstanding issues are whether the Veteran's PTSD symptomatology entitles him to a higher disability evaluation, including a TDIU. During the hearing, there was no confusion that the Veteran needed to present evidence of an increase in symptomatology, as that comprised the bulk of his testimony. Further, the undersigned questioned the Veteran, in relevant part, about whether any of his doctors had opined on employability and whether those opinions were documented in the file. Such evidence was either already in the file or presented immediately after the hearing, along with the necessary waiver mentioned allowing the Board to consider it in the first instance rather than the RO as the AOJ. Moreover, the Veteran did not raise any new issues pertaining to these claims at the hearing. See Bryant, 23 Vet. App. at 497-98. Thus, the Board finds that the hearing officer's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claims and to suggest the submission of evidence when such evidence is missing or has been overlooked has been satisfied. See id. at 496-97. The Veteran has not alleged that there were any deficiencies in the Board hearing related to the hearing officer's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. Moreover, even assuming that there was such a deficiency, the Board finds that it did not prejudice the Veteran's claims. In Bryant, the Court held that, although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability (keeping in mind that the claim in that case was for service connection rather than, as here, for higher ratings for a disability already determined to be service connected), the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication the appellant had any additional information to submit. Bryant, 23 Vet. App. at 498-99. In this case, given the development of the Veteran's claims that has occurred, the Board finds that any deficiency in the Board hearing was non-prejudicial. See id. Moreover, as already stated, the Board does not find any deficiency related to the hearing officer's duties under Bryant, and none has been alleged. Also, the TDIU claim is being granted in full, and the claim concerning the rating for the PTSD nearly so, as the rating for this disability is being increased to 70 percent. Consider, as well, that the Board also is remanding the issue of whether the Veteran deserves an even higher 100 percent rating for his PTSD for further development, so is not denying even this additional component of this claim. He also, as mentioned, has evidenced his personal knowledge of what type of evidence and information was needed to substantiate his claims, indeed, as evidenced by the supporting medical evidence he submitted immediately after his videoconference hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim). Higher Schedular Rating for the PTSD Since the Veteran's claim for an increased disability rating for his PTSD arises from his disagreement with the initial rating assigned after service connection was granted, the Board finds that some additional discussion of the Fenderson case is warranted. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court noted the distinction between a new claim for an increased evaluation of a service-connected disability and a case in which the Veteran expressed dissatisfaction with the assignment of an initial disability evaluation where the disability in question had just been service connected. In the former situation, the Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the current level of disability is of primary importance. In the Fenderson scenario, however, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim - a practice known as a "staged" rating. Fenderson, 12 Vet. App. 125-126. Regardless, the Court also since has extended this practice even to increased-rating claims that do not involve initial ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran already has what amounts to is a "staged" rating, 30 percent then 50 percent. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). In deciding what rating is appropriate, consideration must be given to the history of the disability and all potentially applicable DCs. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher 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. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." See 38 U.S.C.A. § 1155 (2011); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, which is contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different DCs. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The assignment of a particular DC is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in DC by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Mental disorders are evaluated under a General Rating Formula found at 38 C.F.R. § 4.130. In addition, the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed in 38 C.F.R. § 4.130. 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). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). According to the General Rating Formula for Mental Disorders found at 38 C.F.R. § 4.130, the Veteran's 30 percent rating, currently applicable to the period prior to April 30, 2009, requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. The Veteran's 50 percent rating, currently applicable to the period from April 30, 2009 to the present, requires 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. Id. The next higher 70 percent rating requires occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. The next higher, and maximum, 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also 38 C.F.R. § 4.130. In determining whether the Veteran meets the criteria for an increased 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). In evaluating the evidence, the Board also has considered Global Assessment of Functioning (GAF) scores that evaluating clinicians have assigned. A GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence bearing on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95. The higher the score, the higher the overall functioning of the individual is. According to the DSM-IV, a score of 51-60 represents "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). In comparison, a GAF score in the higher 61-70 range is indicative of some "mild" symptoms or some difficulty in social or occupational functioning, but generally functioning pretty well and has some meaningful interpersonal relationships. Id. The Veteran first sought psychiatric assistance in May 2008. His complaints were longstanding problems with irritability, anger, getting overly stressed, being overly strict with his grandchildren, expecting too much from people, frequent nightmares, difficulty sleeping, avoidance of crowds and social situations, avoidance of noise, and frequent intrusive thoughts of Vietnam. He said that he did not like to go to places that are difficult to "escape" from. He also said he occasionally had flashbacks. He had no friends. At the time, he was in a bad mood and his affect was restricted, but cognition was intact, insight and judgment were adequate. Impulse control was adequate, but noted to be historically limited. He was assigned a GAF score of 60. See Psychiatry note dated June 23, 2008. Reference was made to an earlier psychiatric assessment dated May 28, 2008, but it was not contained in the file. At the October 2008 VA examination, the Veteran's affect was constricted and his mood was anxious and depressed. He complained of trouble sleeping, and of not wanting to go to sleep for fear of nightmares. He reported having 2 to 3 panic attacks a week that varied in length and left him feeling emotionally and physically exhausted. His impulse control was normal, and his thought process was unremarkable. He was oriented to time and place. The VA examiner noted that one cause of the Veteran's retirement was his inability to get along with his peers and subordinates, but he also noted the Veteran was able to have a successful business career prior to retirement. The Veteran had a good relationship with his family. The examiner did not think that the Veteran's PTSD symptoms were severe enough to negatively affect social or occupational domains, and assigned a GAF score of 70. However, in summary, he found the Veteran to have deficiencies in judgment (his anger and resentment intrude upon judgment in the interpersonal domain), thinking (intrusiveness of memory and cognitions interfere with rational thought processes), family relations (history of marital conflict due to Veteran's irritability and avoidance), work ("workaholism" and history of poor interpersonal skills with supervisors and subordinates), and mood (labile anger, anxiety, and depression), and therefore a reduced reliability and productivity due to his symptoms. See VA examination dated October 28, 2008. In a February 2009 medication reassessment, the Veteran primarily complained of insomnia and irritability. He felt his moods were fair, but he also said he continues to have anxious moments during the day. He complained of dissociative flashbacks, wherein he perceives himself back in Vietnam for a short period of time. He also has nightmares and intrusive thoughts, and his anxiety keeps him away from crowds. His thoughts were organized and coherent, and his memory was good, but his concentration, insight, and judgment were limited. He was noted to have "obsessive worry." He was anxious and depressed, and his affect was constricted. See Mental Health Nursing note dated February 18, 2009. One of the Veteran's friends, D.C., submitted a statement describing some of the symptoms the Veteran complained about to him, including nightmares, frequent panic attacks, and isolating behavior. He said that the Veteran has a difficult time completing tasks. He also said that he had to leave work because he could not get along with people, and he was worried he may hurt someone. D.C. also indicated that the Veteran has little patience for civilians, has road rage, and that he has thoughts of hurting people. See Statement signed by D.C. received May 20, 2009. At the May 2009 VA examination, the Veteran complained of difficulty in maintaining attention. His recent and immediate memory were mildly impaired, and he complained of misplacing things and generally being forgetful. He complained of trouble sleeping most nights. His impulse control was somewhat impaired, and the Veteran described having angry outbursts. He complained of having panic attacks, which were increasing in the preceding months. The VA examiner opined that the Veteran was impaired in thinking, in that he had impaired concentration, memory, and short-term memory. He was also impaired in mood, and complained of moodiness and irritability. He would not be as reliable or productive due to his symptoms, because the anxiety and irritability cause him to avoid social situations. He was assigned a GAF score of 55. See VA examination dated May 26, 2009. In August 2009, he reported having multiple panic attacks on a daily basis, and was given Klonopin for this. He was not in a good mood, and said that he has been staying home. His insight and judgment were assessed as adequate. See Psychiatry note dated August 14, 2009. In September 2009, the Veteran reported he was feeling less anxious on the Klonopin, but still had some anxiety, as well as bouts of irritability on a daily basis. He also reported nightmares and intrusive thoughts of service on a daily basis. His sleep was poor and restless. See Mental Health Nursing note dated September 2, 2009. At the October 2009 VA examination, the Veteran reported feeling intermittent dysphoria related to intrusive memories of the war, as well as episodes of panic lasting about ten minutes at least once a day. He said that sometimes they are precipitated by an unexpected loud noise, but other times he was unable to tell the cause. He also reported having dreams and intrusive thoughts about service several times a week. He avoids reminders of war, as well as crowds. The Veteran described himself as family-oriented, and he and his wife were noted to have been married for forty years. He also said that he avoids most social situations, except for spending time with family. He has a few friends. The VA examiner opined that the severity of his symptoms were improving, but he was still exhibiting evidence of anxiety and panic at least once, but sometimes several, times a day. He also was still having intermittent nightmares and occasional intrusive thoughts. He was assigned a GAF score of 55. See VA examination dated October 14, 2009. In January 2010, the Veteran reported to his therapist, Dr. S.T., that he often had distressing dreams of combat, as well as frequent intrusive thoughts and images of Vietnam. He had flashbacks, and felt the presence of a deceased friend for a period of four weeks. He experiences distressing emotions on any sort of reminder of Vietnam, and was having reliving experiences on a daily basis. Dr. S.T. noted that the Veteran has the physiological hyperarousal symptoms of PTSD, causing him difficulty in sleeping, which leads to a lack of stamina during the day. He has limited concentration and a short attention span, which lasts about 15 minutes before he quits trying to complete a task due to frustration. He is hypervigilant and avoids crowds. He complained of panic attacks. He experiences a restricted range of emotions, and is unable to express warm and affectionate feelings. He said he is predominantly irritable, which affects his home life. He has no friends. He has an exaggerated startle response, and impaired impulse control. See Psychology note dated January 12, 2010. Later that month, the Veteran denied having panic attacks, but indicated he was continuing to have nightmares about the war every night. He was not getting much sleep. The Veteran was noted to be isolating himself, but did have a few friends. He reported an "up and down" relationship with his family. His memory was good and his thoughts were organized and coherent, but his insight and judgment were noted to be limited. He was assigned a GAF score of 55. See Mental Health Nursing Note dated January 27, 2010. The Social Security Administration (SSA) found the Veteran disabled for their purposes due to anxiety related disorders, effective in June 2007. His wife completed a function report wherein she indicated that his symptoms affect his ability to dress, bathe, and care for his hair, and that he needs daily reminders to dress and bathe. She said that he is not involved in much social activity and that his involvement has been declining. See Third party Function Report dated March 5, 2010. In August 2010, Dr. S.T. noted he had passive suicidal ideation but no plans to take his life. The Veteran had begun drinking heavily again due to increased instances of reliving traumatic events, and hyperarousal, anxiety and depression. He said he did not want to lose his family and was planning to enter into residential treatment for alcohol abuse. See Psychology General note dated August 5, 2010. The Veteran was assessed prior to entering the residential treatment program. He described his wife and two children as supportive, and told the doctor he had three close friends. He said that he had heard "weird noises" twice in the past, and had experienced visual and auditory hallucinations twice in the previous few weeks. During the assessment, he was experiencing moderate symptoms of clinical depression. He was assigned a GAF score of 50. See Psychology-Testing/ Assessment note dated August 9, 2010. In a July 2011 outpatient note, the Veteran's social worker, J.C.E., indicated that the Veteran was feeling severe anxiety, which he was trying to manage, and that he had resorted to alcohol use because of it. This exacerbated strained relationships in his family. See Social Work Outpatient note dated July 8, 2011. At the time of the July 2011 VA examination, the Veteran and his wife were trying to determine whether they wanted to save their marriage, and were living with their daughter and her family. He was described as having two close friends, who were also Vietnam veterans. He indicated he enjoys coming to his treatment and spending time with his dogs. Although he had gone through alcohol abuse treatment, he noted a relapse, and the examiner indicated the Veteran was continuing to decompensate even with extensive treatment, including psychotherapy and pharmacotherapy. See STEDMAN'S MEDICAL DICTIONARY 444 (26th ed. 1995) ("decompensation" means "the appearance or exacerbation of a mental disorder due to failure of defense mechanisms"). At the examination, he was clean and neatly groomed. He was restless and anxious. His attention was intact, but he was unable to do serial sevens or spell a word forward and backward. His thought process was rambling. He complained of trouble sleeping, and that he sleeps on the floor so as not to wake up his wife. He did not complain of hallucinations or ritualistic behavior, but he did say that he had daily panic attacks that were unpredictable. The examiner noted the Veteran's impulse control was fair, and cited his recent alcohol relapse as an example. He opined that the relapse may have contributed to feelings of depression. The VA examiner opined that the Veteran's PTSD leaves him with impaired judgment and thinking, and interferes with family relations and mood. He assigned a GAF score of 55. See VA examination dated July 12, 2011. An August 2011 addendum opined that PTSD does not prevent him from maintaining substantially gainful employment. The examiner again noted his psychiatric condition was worsening, but said the symptoms are moderate. See Addendum dated August 4, 2011. In July 2011, Dr. S.T. opined that he was totally disabled. It was noted that the Veteran was having hyperstartle responses, flashbacks, and other intrusive thoughts of his service in the Republic of Vietnam. His thoughts were coherent, speech was relevant and goal-directed, concentration and impulse control were good, but judgment and insight were fair. See Psychology General Note dated July 28, 2011. In August 2011, J.C.E. completed a PTSD questionnaire, in which he diagnosed PTSD and alcohol dependence. The Veteran's symptoms include depression; anxiety; suspiciousness; frequent panic attacks; chronic sleep impairment; flattened affect; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; difficulty in understanding complex commands; impaired judgment, abstract thinking, and impulse control; disturbances of motivation and mood; difficulty in establishing and maintaining relationships; obsessional rituals that interfere with routine activities; and, intermittent inability to perform activities of daily living. He assigned a GAF score of 50. See PTSD questionnaire dated August 19, 2011. In October 2011, Dr. S.T. noted increased depression, including nightmares of combat trauma. He opined that the Veteran has deficiencies in most areas, due to poor focus and poor concentration, chronic depression, and anger. He has frequent panic attacks and his depression affects his ability to function appropriately. He shows impaired impulse control, is irritable, and has unprovoked explosive anger reactions. He has difficulty adapting to stressful circumstances and is unable to establish and maintain effective relationships. Sleep and concentration were poor; judgment, insight, and impulse control were fair. See Psychology General Note dated October 6, 2011. During the Veteran's Board Hearing in October 2011, he testified to having an immense amount of panic attacks during the week, which are occasionally accompanied by visual hallucinations. Some days he has up to four, other days only one, and he has been unable to figure out what causes them. If he has one while driving, he must pull over and wait for it to subside. He frequently dreams of his friends that were killed during the war, citing two in particular. He said that his motivation is weak and all he really does is come to the VA for mental health treatment. He said he is alone a lot, he isolates and avoids social situations unless to spend time with his friends who also served in Vietnam, and that has caused problems in his marriage. He and his wife were separated (in-house). He testified that he started drinking in service, that he was self-medicating, and that J.C.E. has attributed alcohol dependence to PTSD. He did not complain about long-term memory but said his short-term memory is not very good and that he gets easily confused. He has a hard time dealing with problems, which leave him feeling distressed and depressed. While he was still working, he would lash out at people at least a few times each week, which eventually led his employer to ask him to retire. He said that he thinks that most of the people he worked with are lazy. He said he has a general lack of interest in most things. See Hearing transcript dated October 17, 2011. Based on the foregoing, and in regards to the entire period under review, the Board finds that there is an approximate balance between the evidence regarding whether the Veteran is entitled to an initial disability rating of 50 or 70 percent (versus the lesser 30 percent he now has). He clearly meets the criteria for at least a higher 50 percent rating, as he has shown occupational and social impairment with reduced reliability and productivity due to his symptoms such as an inability to maintain concentration or complete tasks requiring extended attention, and to clear his head of intrusive thoughts, disturbances of both mood and motivation, and he has difficulty establishing and maintaining social and work relationships. At the same time, the evidence also shows that his symptoms are suggestive of even greater social and occupational impairment on the order of a 70 percent rating because he has shown occupational and social impairment with deficiencies in mood, work, family relations, thinking, and judgment. Specifically, he described intense feelings of anxiety and depression on a daily basis. He described having either flashbacks, intrusive thoughts, or nightmares of his experiences in Vietnam on a near-daily basis. He has at least one, but sometimes multiple, panic attacks a day, and he has been unable to determine the cause of all of them. He does not sleep well. These symptoms contribute to his irritability, his poor concentration, and his avoidance of social functions and situations with crowds, loud noises, or no clear escape route. He needs to be reminded to bathe and maintain his hygiene. He has no patience for civilians and has thoughts about hurting people, which prevents him from establishing new relationships and would also affect his ability to find and keep employment. He has unprovoked explosive anger reactions. He indicated having had auditory and visual hallucinations, as well as flashbacks wherein he feels he is back in Vietnam. He feels isolated, and isolates himself from family and friends. His only friends are fellow Veterans. He has had vague notions of suicide. Significantly, the July 2011 VA examiner indicated the Veteran's symptoms were continuing to worsen, despite psychotherapy and pharmacotherapy. Accordingly, applying the doctrine of the benefit of the doubt, the Board finds he is entitled to the greater of these two possible higher ratings, so is granting a 70 percent disability rating for the entire period under review, that is, from the effective date of service connection, July 23, 2008, to the present. As to whether he is entitled to an even higher 100 percent schedular rating for his PTSD, the Board is remanding this portion of this claim for further development. Extra-schedular Consideration Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extra-schedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extra-schedular rating, the threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. See Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that referral for extra-schedular consideration is not warranted in this case. The Veteran's reported symptoms (i.e., near-constant depression and anxiety, panic attacks, nightmares, isolating behavior) are contemplated by the rating criteria. There are no symptoms left uncompensated or unaccounted for in his assigned schedular rating, especially by the higher 70 percent rating he is receiving in this decision. The evidence, then, does not indicate his PTSD presents "such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (2012). The fact that circumstances specific to a particular claimant may cause the effects of a service-connected disability to be more profound in that claimant's case does not ordinarily provide a basis for extra-schedular consideration. Id. Rather, the impairment must be so unusual as to be unanticipated by the rating criteria. See id. Because the Board finds that the symptoms caused by the Veteran's PTSD are contemplated by the rating criteria, there is no need to consider whether it causes marked interference with employment, meaning above and beyond that contemplated by the assigned schedular rating, also recognizing that a TDIU is being additionally granted in this decision, or requires frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Entitlement to a TDIU The Veteran claims he is unable to obtain or maintain substantially gainful employment because of the severity of his PTSD and, therefore, entitled to a TDIU. A TDIU requires impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the claimant's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by disabilities that are not service connected. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340 , 3.341, 4.16, 4.18, 4.19 (2012). In making this determination, then, the critical 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). If there is only one service-connected disability, it must be ratable at 60 percent or more. Whereas, if there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. But disabilities resulting from common etiology or single accident will be considered as one disability in determining whether these threshold minimum rating requirements are met. 38 C.F.R. § 4.16(a). The Veteran's only service-connected disability is his PTSD. In this decision the Board is awarding him a higher 70 percent rating for this disability retroactively effective from the receipt of his claim on July 23, 2008. Therefore, he satisfies the threshold requirements of 38 C.F.R. § 4.16(a) for consideration of his entitlement to a TDIU - that is, without having to resort to the special extra-schedular provisions of 38 C.F.R. § 4.16(b). So the only remaining consideration is whether this service-connected disability renders him unable to obtain and maintain substantially gainful employment. In Hatlestad v. Derwinski, 1 Vet.App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there is a need to discuss whether the standard delineated in the controlling regulations is an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment. In a pertinent precedent decision, VA's General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. As further observed by VA's General Counsel, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. A claim for a TDIU "presupposes that the rating for the [service-connected] condition is less than 100 [percent], and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). To reiterate, in evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but as mentioned not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. See also Hodges v. Brown, 5 Vet.App. 375 (1993); Blackburn v. Brown, 4 Vet.App. 395 (1993); and Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." See, too, Moore v. Derwinski, 1 Vet.App. 356, 358 (1991). Also, in Faust v. West, 13 Vet.App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." In this context, the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore (Robert) v. Derwinski, 1 Vet.App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. 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. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). As the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). That said, as already alluded to, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability, especially when the Veteran has a schedular rating in the higher end of the rating spectrum. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Turning now to the facts of this case, records show the Veteran has not engaged in substantially gainful employment since June 2007. During his October 2011 hearing, he testified that he had been a salesman for a publishing company, and that he had trouble with the people he worked with. He felt they were lazy and he would lash out at them if they did not do what they were supposed to do. He said these incidents would occur multiple times a week. See Hearing transcript dated October 17, 2011. SSA found him disabled due to anxiety-related disorders, effective June 30, 2007. In February 2009, during a medication reassessment, the certified nurse practitioner opined that the Veteran would not be employable. He receives group and individual psychotherapy, as well as pharmacotherapy, which help him maintain stability in his moods, and he will need to continue such treatment long-term. See Mental Health Nursing note dated February 18, 2009. The July 2011 VA examiner provided an opinion in August 2011 regarding employability. He opined that the Veteran was not unemployable and could maintain substantially gainful employment. He said that, although the Veteran's psychiatric condition continues to decline and his symptoms do cause difficulty in occupational functioning, his symptoms are moderate. See Addendum dated August 4, 2011. The Veteran's therapist, Dr. S.T., opined that he is unemployable. Neurobiological mechanisms that would regulate mood and arousal have seriously degraded, such that the Veteran requires a very low-stress lifestyle, which helps to maintain a stable mood, and therefore stable behavior. Minor challenges exceed the Veteran's stress and tolerance limits, causing confusion and hyperarousal, which then leads to "fight or flight" behavior. See Psychology General note dated October 6, 2011. The Board finds the opinion of Dr. S.T. to be the most probative because it is supported by explanatory rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion). The Board is cognizant that both the Federal Circuit Court and Veterans Court (CAVC) have specifically declined to adopt a "treating physician rule" that would give preference to statements from a treating physician. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Guerrieri v. Brown, 4 Vet. App. 467 (1993). However, the duration and depth of a physician's treatment relationship with a Veteran is nonetheless a factor to be considered when assessing the probative value of medical evidence. Here, the Veteran attended frequent therapy sessions with Dr. S.T., as opposed to the July 2011 VA examiner, who only worked with the Veteran for the purpose of the VA examination and never provided him with actual treatment. Further, the Board observes the Veteran described his previous employment as a salesman. Such a vocation would require him to frequently interact with people, including perhaps complete strangers, and to place himself in unfamiliar situations. These are the type of scenarios that Dr. S.T. indicated would exceed the Veteran's tolerance levels. The record does not suggest the Veteran has any other type of employment experience, and his inability to concentrate for extended periods of time coupled with difficulty in adapting to stressful circumstances would seriously impair his ability to enter into a new field. In summary, then, the Board finds that the evidence shows his PTSD is of such severity that he is rendered unable to secure or follow a substantially gainful occupation in any meaningful capacity. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Thus, with resolution of all reasonable doubt in his favor, he is entitled to a TDIU. 38 C.F.R. § 4.3. ORDER A higher 70 percent rating is granted for the PTSD retroactively effective from July 23, 2008, subject to the statutes and regulations governing the payment of VA compensation. The derivative TDIU claim also is granted, also subject to the statutes and regulations governing the payment of VA compensation. REMAND The Board finds that still additional development of the record is necessary in regards to whether the Veteran is entitled to an even higher 100 percent disability rating for his PTSD. The July 2011 VA examiner diagnosed the Veteran with chronic PTSD and alcohol dependence in early remission. He did not comment on the relationship, if any, between these two diagnoses. The Veteran asserted during his videoconference hearing before the Board that one of his treatment providers, J.C.E., had indicated that the alcohol dependence is due to the PTSD, but a documented record of this opinion has not been received. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (indicating a Veteran's account of what a doctor purportedly said, filtered as it is through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute competent medical evidence in support of a claim). One must also consider however that, in Allen v. Principi, 237 F.3d 1368 (2001), the Court pointed out that the statute barring disability compensation "if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs" does not preclude compensation for an alcohol or drug abuse disability secondary to a service-connected disability, or use of an alcohol or drug abuse disability as evidence of the increased severity of a service-connected disability. Allen v. Principi, 237 F.3d 1368 (2001), overruling Barela v. West, 11 Vet App 280 (1998); see also 38 U.S.C.A. § 1110 (West 2002). VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. In Mittleider v. West, 11 Vet. App. 181 (1998), the Court found that when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, then 38 C.F.R. §§ 3.102 and 4.3, requiring that reasonable doubt on any issue be resolved in a Veteran's favor, dictate that such signs and symptoms be attributed to the service-connected disability. So, on remand, the Veteran should be scheduled for another VA compensation examination to determine whether his history of substance abuse is due to or aggravated by his service-connected PTSD. See 38 C.F.R. § 3.310(a) and (b), permitting the granting of service connection for disability that is proximately due to, the result of, or aggravated by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). And, if not, the examiner should distinguish the symptoms of nonservice-connected psychiatric pathology (e.g., any non-service related substance abuse) from service-connected PTSD so that the clearest picture of the Veteran's disability may be obtained. The July 2011 VA examiner also noted the Veteran was enrolled in an inpatient alcohol and PTSD treatment program at the VA Medical Center (VAMC) in Lebanon, Pennsylvania, in August 2010. And during his October 2011 videoconference hearing before the Board the Veteran indicated he had successfully completed that program. The complete records from the program are not contained in the file, except for the initial psychological assessment dated August 9, 2010. Because the treatment also pertained to his service-connected disability, these records must be obtained and reviewed. 38 C.F.R. § 3.159(c)(2). Additionally, if the newly-obtained medical opinion finds a causative relationship between the PTSD and alcohol dependence, then consideration of a temporary total rating under 38 C.F.R. § 4.29 because of that hospital treatment, if it was for more than 21 days, would need to occur, assuming also that it was not during a time when the Veteran had a TDIU (which, in turn, will depend on the effective date the RO/AMC assigns for the TDIU when effectuating this grant). Accordingly, this remaining component of the claim concerning the rating for the PTSD is REMANDED for the following additional development and consideration: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the Veteran and request that he identify all additional medical evaluation or treatment he has received for his PTSD and alcohol dependence since October 2011, whether from VA or privately. If necessary, ask that he complete and return the authorization (VA Form 21-4142) so that VA may obtain all additional medical evaluation or treatment records, including especially but not limited to those concerning his inpatient treatment in August 2010 at the Lebanon VAMC. Obtain all records that are not already in the file. The amount of effort needed to be expended in trying to obtain additionally identified records depends on who has custody of them. If records identified are not in the custody of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls if they are. Also appropriately notify the Veteran if unable to obtain identified records. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, schedule another VA compensation examination for comment concerning whether the Veteran's history of alcohol dependence, albeit in early remission, was caused or aggravated by his service-connected PTSD. The examiner should fully explain the relationship, if any, between any substance abuse and PTSD. Specifically, the examiner should describe: (1) the extent of the Veteran's functional impairment, socially and occupationally, which is attributable to his PTSD alone, not to include functional impairment due to factors or symptoms resulting from alcohol dependence. If a determination is not possible, that should be so noted and an explanatory rationale as to why a determination is not possible should be provided; and, (2) determine whether alcohol dependence is secondary to or a symptom of the Veteran's service-connected PTSD, including especially in terms of the likelihood (very likely, as likely as not, or unlikely) it is related or attributable to the PTSD or the PTSD has worsened it. The term "as likely as not" means at least 50 percent probability. It does not however mean merely within the realm of medical possibility, rather, that the weight of the medical evidence both for and against a conclusion such as causation or aggravation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The claims folder and a complete copy of this decision and remand must be made available to the examiner in conjunction with the examination. A notation to the effect that a records review took place should be included in the report. Complete rationale should be given for all opinions rendered. The Veteran is hereby advised that failure to report for this scheduled VA examination, without good cause, may have adverse consequences on this pending claim. 3. Then, in light of this and all other additional evidence, consider whether the Veteran is entitled to an even higher, i.e., 100 percent rating for his PTSD. Consideration of this even higher 100 percent schedular rating should be under 38 C.F.R. § 4.130, DC 9411, but also, if shown to possibly warrant consideration, § 4.29 regarding the inpatient treatment in August 2010 at the Lebanon VAMC, if it exceeded the required 21 days, also if it was not during a time when the TDIU was in effect (which will depend on the effective date assigned for this grant). If this even higher rating is denied, send the Veteran and his representative another SSOC and given them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining component of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs