Citation Nr: 1316405 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 10-46 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD), to include major depressive disorder and adjustment disorder, prior to August 23, 2007. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for PTSD and assigned an initial 30 percent rating, effective July 24, 2002, and a 70 percent rating, effective August 23, 2007. By a September 2010 rating decision of a Decision Review Officer (DRO), the ratings were increased to 50 percent, effective July 24, 2002, and 100 percent, effective August 23, 2007. As the 50 percent rating assigned prior to August 23, 2007, is less than the maximum available rating, the issue, limited to that time period, remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a total disability rating based on individual unemployability (TDIU) claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that a Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In the instant case, the record reflects that, in a November 2009 rating decision, the issue of entitlement to a TDIU was denied and the Veteran expressed disagreement with such decision in July 2010. In September 2010, the RO responded to the Veteran's disagreement and informed him that as his service-connected PTSD was assigned a 100 percent rating, the issue of entitlement to a TDIU was moot. However, the issue of entitlement to an initial rating in excess of 50 percent for service-connected PTSD prior to August 23, 2007, is currently on appeal and thus the Board must consider if the issue of entitlement to a TDIU is raised by the record. Specifically, in a number of statements of record, including his claim for a TDIU, the Veteran and his attorney have asserted that the Veteran is unemployable. Further, the Court has held that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). 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 although perhaps not ratable at the schedular 100 percent level, when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114(s). As such, the question of TDIU is raised by the record and the Board has captioned the issues on the title page herein to reflect such. The issue of entitlement to a TDIU, addressed in the REMAND portion of the decision below, is REMANDED to the RO. FINDING OF FACT Resolving all doubt in favor of the Veteran, prior to August 23, 2007, his service-connected PTSD, to include major depressive disorder and adjustment disorder, was manifested by 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, near-continuous depression affecting the ability to function effectively, and difficulty in adapting to stressful circumstances. CONCLUSION OF LAW Prior to August 23, 2007, the criteria for an initial rating of 70 percent, and no more, for service-connected PTSD, to include major depressive disorder and adjustment disorder, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.130, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist the Appellant The Veteran's claim on appeal arises from his disagreement with the initial rating assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, relative to the time period on appeal, the Veteran was afforded a VA examination in December 2003. The December 2003 evaluation is considered adequate for rating purposes as they are based on consideration of the Veteran's medical history and describe the relevant disability in sufficient detail to enable the Board to reach a fully informed decision. See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). A retrospective opinion as to the severity of the Veteran's PTSD prior to August 23, 2007, is not required, as there is sufficient medical and lay evidence, specifically, the results of the December 2003 VA examination as well as numerous instances of VA treatment wherein the Veteran's mental status was recorded, to adjudicate the claim. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). The Veteran has not indicated that he was seen regarding his PTSD by any provider or at any time other than the treatment reflected in the current records on file. Therefore, all identified and authorized post-service treatment records available and relevant to the issue on appeal have been requested or obtained. Based upon the above, the Board finds that VA has satisfied its duty to assist and that no additional assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Increased Rating By way of background, pursuant to 38 C.F.R. § 4.130, DC 9411, an August 2008 rating decision granted service connection for PTSD, assigning an initial 30 percent rating, effective July 24, 2002, and a 70 percent rating, effective August 23, 2007. A September 2010 DRO rating decision assigned a 50 percent rating to PTSD, effective July 24, 2002, and a 100 percent rating, effective August 23, 2007. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Here, on appeal is the initial assignment of the 50 percent rating prior to August 23, 2007, and as such, the severity of the disability is to be considered during the period from the initial assignment of the 50 percent rating, July 24, 2002, to August 23, 2007, the date upon which a total rating, 100 percent, was granted. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, where the evidence contains factual findings that show distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim, or whether a preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DC 9411 provides, in pertinent part, for the following evaluations for psychiatric disabilities. A 50 percent rating is warranted if it is productive of 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. A 70 percent rating contemplates 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); inability to establish and maintain effective relationships. A 100 percent rating contemplates 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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, 442 (2002). In adjudicating a claim for an increased evaluation, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). GAF scores ranging between 61 and 70 are assigned when there are 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms such as flat affect and circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores ranging between 41 and 50 are assigned when there are 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). GAF scores ranging between 31 and 40 are assigned when there is 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). GAF scores ranging between 21 and 30 are assigned when behavior is considerably influenced by delusions or hallucinations, or there is serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). See Diagnostic and Statistical Manual of Mental Disorders. The Board now turns to the medical and lay evidence of record. The record before the Board contains voluminous post-service treatment records, which will be addressed as pertinent. Dela Cruz, 15 Vet. App. 143, at 148-49 (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). In this regard, the Board seeks evidence as to the symptoms and signs of the Veteran's PTSD warranting a rating higher than 50 percent. During VA treatment in October 2002, the Veteran reported that he became upset easily, and that while he was not sure his medication helped his mood, it did help him sleep. He presented alert, coherent, and oriented in all spheres, with a neutral mood. He denied seeing things, hearing voices, or paranoid thoughts. His memory for recent and past events was intact, and he had fair insight and judgment. He was given a GAF score of 60. In December 2002, during VA treatment, the Veteran reported that he was divorced and unemployed. He reported that while his girlfriend believed him to be depressed, he disagreed. There was no suicidal or homicidal ideation, no symptoms of psychosis, and he had good insight and judgment. During VA treatment in February 2003, the Veteran reported that he was in a great deal of pain, and that the recent holidays were very difficult. He complained of increasing depression, but reported that his relationship with his girlfriend was going well. He complained of difficulty concentrating and reported sleep disturbances with nightmares. He denied suicidal thoughts, but also reported that he sometimes wondered if he would be better off dead. Mental status was similar as to past examinations; there was no evidence of psychosis. He was polite and cooperative. His cognitive capabilities seemed grossly intact, although some minor reduction in attention and concentration was noted. His mood was mildly dysphoric, and he had an appropriate affect. VA treatment records dated in March 2003 indicate that the Veteran reported that while his medication had improved his mood, he still experienced a "down" mood. His appetite was adequate, and he slept four to five hours each night. He complained that his mood was "down" since the holidays and he could not buy gifts for his girlfriend. He reported that he was easily upset. He was alert, coherent, and oriented in all spheres, with a slightly "down" mood. He denied hearing voices, seeing things, or paranoid thoughts. He denied suicidal or homicidal thoughts. His memory to past and recent events was intact, and his insight and judgment were fair. He was assigned a GAF score of 60. During VA treatment in August 2003, the Veteran appeared less emotionally despondent, but complained of pain causing sleep problems. He reported that he was in a great deal of physical pain and wondered if he was over-medicated. He presented slightly improved, but still appeared somewhat dysphoric. There was no evidence of psychosis. During an additional episode of treatment in August 2003, the Veteran complained of a "down" mood, and reported that he felt as if he was in the bottom of the barrel and everything was dragging him down. He reported that his appetite was not as good. He was alert, coherent, oriented in all spheres, and had a "down" mood. He denied thoughts of wanting to harm himself or others, but reported that there were times that suicidal ideation came to mind. He denied hearing voices. He reported that sometimes he felt as if there was someone moving at the corner of his eye. He denied paranoid thoughts. He had fair insight and judgment, and some problems with recent memory. He was assigned a GAF score of 60. VA treatment records dated in October 2003 indicate that the Veteran was hospitalized for three days. On admission, he complained that "I just lost it, I have multiple sclerosis, and I am in constant pain." He reported that he had thought about suicide, over the past three months but denied current suicidal thoughts and reported that he "just wanted to get straightened out." He complained of crying spells, decreased appetite, sleep problems with nightmares, flashbacks, and increased depression. He reported that he had a close relationship with his girlfriend, mother, and two living siblings, and had a good family or social support network. He noted that he enjoyed working around the house and wood working. Mental status examination revealed that the Veteran was cooperative, pleasant, somewhat negative, and alert and oriented in all spheres. He had a slow gait; normal speech, thought content, cognition, and attention; fair motivation and insight; poor judgment; fair memory, with some difficulty recalling dates; an appropriate appearance; good eye contact; and fair hygiene. He was agitated at times, without psychomotor retardation. He affect varied with conversation, and he had a sad, anxious, and angry mood. He was given a GAF score of 35. At discharge in October 2003, he was alert, responsive, and was oriented in all spheres. He had good eye contact, clear and coherent speech, and appropriate interactions. He had no depression or anxiety complaints, was in a better mood, and had no current suicidal or homicidal thoughts. On VA examination in December 2003, the examiner noted prior GAF scores of 60, 48, and 55. The Veteran reported that he had been married three times, had no children, and currently lived with his girlfriend of seven years. He noted that their relationship was loving and mutually supportive. He reported financial stress. He reported that he had several friends in a nearby town, that he visited his mother weekly, and that he had some contact with his two living siblings. He noted that he took care of two dogs, fixed his own meals, handled the household finances, and was in the process of upgrading his kitchen. He reported that he was placed on medical leave for physical problems three months prior, after 32 years as a tool setter. When asked if there were any emotional reasons why he would be unable to work, the Veteran answered in the negative, and reported that he would like to eventually return to work after treatment for his knee disability. The Veteran told the examiner that he did not know why he was there, and that he had a pending claim for benefits. He complained that his memory was not what it used to be, that he became depressed at times, that he had occasional bouts of unbearable physical pain, and that he spent most of the day watching television. He reported that he still thought about his war experiences and was crying a lot in the past few months. He complained of poor sleep due to knee pain. Mental status examination in December 2003 revealed that the Veteran was adequately groomed, neatly but casually dressed, and early for his appointment. He was alert and oriented in all spheres and presented with: good eye contact; adequate attention, concentration, insight, judgment, and impulse control; accurate but slow serial sevens; long-term memory and intellectual capabilities within normal limits; normal speech and thought content; and an appropriate affect and euthymic mood. He had some short-term memory deficits and some secondary gain issues were evident. He denied thoughts of suicide or homicide, and there was no evidence of psychiatric symptoms. He was assigned a GAF score of 60. During VA treatment in January 2005, the Veteran asserted that he only took his medication if he felt it was needed. He reported some sleep disturbances and an adequate appetite. He was alert, coherent, and oriented in all spheres, with a "down" mood and occasional anxiety. There was no evidence of psychosis or paranoia, and his past memory, insight, and judgment were adequate. He had some problems with recent memory. He was assigned a GAF score of 57. VA treatment records dated in June 2005 indicate that the Veteran complained of depression related to a friend just passing away. He reported that he sometimes forgot to take his medication. He presented alert, coherent, and oriented in all spheres. He described his mood as "up and down" due to many situational problems such as pain in his knee and his friend passing away. He denied suicidal or homicidal thoughts. There was no evidence of psychosis or paranoia, and his past memory, insight, and judgment were adequate. He had some problems with recent memory. He was assigned a GAF score of 60. During VA treatment in January 2006, the Veteran complained of sleep problems and dreaming about taking care of patients during his war service. He reported that his appetite was fair. He presented alert, coherent, and oriented in all spheres. His mood varied due to many situational problems. He denied suicidal or homicidal thoughts. There was no evidence of psychosis or paranoia, and his past memory, insight, and judgment were adequate. He had some problems with recent memory. He was assigned a GAF score of 60. VA treatment records dated in May 2006 indicate that the Veteran denied suicidal or homicidal thoughts, and depression. The Veteran's attorney, in February 2013, submitted statements from the Veteran and his girlfriend, with a waiver of Agency of Original Jurisdiction (AOJ) consideration of such, in support of his claim of entitlement to an initial rating more than 50 percent for PTSD prior to August 23, 2007. However, as discussed above, the temporal focus of the current appeal includes consideration of evidence dated from July 24, 2002, the date upon which the 50 percent rating was assigned, until August 23, 2007, the date upon which a total rating, 100 percent, was granted. Fenderson, 12 Vet. App. 119. Thus, the February 2013 statements are of limited probative weight in the current appeal. Based on a review of the evidence of record, and resolving all doubt in favor of the Veteran, the Board finds that his disability picture for PTSD, prior to August 23, 2007, most closely approximates a 70 percent rating. See Hart, 21 Vet. App. 505. In this regard, the Board finds the Veteran's consistent and credible account of psychiatric symptomatology, as recorded during VA examination and instances of treatment, to be competent and credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In reaching this determination, the Board notes that the Veteran, prior to August 23, 2007, demonstrated suicidal ideation, near-continuous depression affecting the ability to function effectively, and difficulty in adapting to stressful circumstances, as is contemplated by the DC 9411 for a 70 percent rating. 38 C.F.R. § 4.130, DC 9411. While he denied suicidal thoughts on a number of occasions, it is significant that he reported, in February 2003, that he sometimes wondered if he would be better off dead; and in August 2003, reported that sometimes thoughts of suicide came to mind. He sought three-day hospitalization in October 2003 and reported that he thought about suicide for the three months prior. He has reported depression, sometimes increasing depression, during almost every instance of treatment and complained of crying spells and feeling easily upset. In February 2003 and March 2003, he reported difficulty with the holidays and increasing depression; and his treatment providers, in June 2005 and January 2006, noted that his mood varied with situational problems. It is significant that during the entire period, the Veteran has described financial stress and great physical pain, clearly, stressful circumstances. The Board thus finds such as evidence of suicidal ideation, near-continuous depression affecting the ability to function effectively, and difficulty in adapting to stressful circumstances. However, there is no evidence of symptoms that more nearly approximate the symptoms, or symptoms similar in type and degree, contemplated by DC 9411 for a 100 percent rating. No impairment in thought processes or communications, grossly inappropriate behavior, or disorientation, or symptoms tantamount to such, are noted or claimed. As discussed above, the Board has considered the Veteran's suicidal thoughts, however, there is no persistent danger to self or others, or symptoms tantamount to such, noted or claimed. The Veteran has not shown total social impairment, or symptoms tantamount to such. While he was divorced three times in years prior; he has consistently described a good relationship with the same girlfriend over the course of the appeal. On VA examination in December 2003, he reported that he had friends in a nearby town, visited his mother, and had contact with his living siblings. In October 2003, he also reported that he had a good family or social support network. While the Veteran reported during one instance of treatment in August 2003 that he sometimes felt as if he saw someone moving in the corner of his eye, there is no evidence of persistent delusions or hallucinations, or symptoms tantamount to such. While the Veteran demonstrated memory problems in August 2003, some difficulty recalling dates in October 2003, some short-term memory deficits in December 2003, problems with recent memory in January 2005, June 2005, and January 2006, there is no evidence of memory loss for names of close relatives, own occupation, or own name, or symptoms tantamount to such. Thus, a 100 percent rating under DC 9411 is not warranted prior to August 23, 2007. The Veteran's GAF scores during this period were: 35, on one occasion in October 2003; 57 on one occasion in January 2005; 60, on six occasions in October 2002, March 2003, August 2003, December 2003, June 2005, and January 2006. On VA examination in December 2003, the examiner noted prior GAF scores during the period of 60, 48, and 55. As described above, GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms and GAF scores ranging between 41 and 50 are assigned when there are serious symptoms, reflected by the 70 percent rating assigned herein. There is no evidence that the Veteran's GAF scores indicate symptoms that warrant a 100 percent rating under DC 9411. While he was assigned one GAF score of 35, on admission for hospitalization; and a GAF score of 35 is assigned when there is some impairment in reality testing or communication or major impairment in several areas, no such symptoms were recorded. The Veteran presented, in pertinent part, somewhat negative, with a slow gait, poor judgment, and some difficulty recalling dates. He was agitated and had a sad, anxious, and angry mood. Significantly, three days later, he was discharged without psychiatric complaints; and two months later, presented for VA examination in December 2003 and was assigned a GAF score of 60. At that time, he reported being on medical leave and denied that there would be an emotional reason for his inability to work. Thus, the Board finds no basis, considering the Veteran's GAF scores, for an initial rating higher than 70 percent prior to August 23, 2007. See Diagnostic and Statistical Manual of Mental Disorders. Finally, the Board has considered whether the Veteran's claim warrants referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321. The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. The Board finds that the rating criteria contemplate the Veteran's PTSD. The Veteran's complaints of anxiety, depression, difficulty concentrating, sleep and mood disturbances, memory problems, suicidal thoughts, and decreased judgment are contemplated by the rating presently assigned and the applicable rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. In sum, the Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson, 12 Vet. App. 119; Hart, 21 Vet. App. 505. The weight of the probative evidence demonstrates that for the period prior to August 23, 2007, the Veteran's PTSD, to include major depressive disorder and adjustment disorder, warrants an initial 70 percent rating, and no more. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. ORDER An initial rating of 70 percent, and no more, for service-connected PTSD, to include major depressive disorder and adjustment disorder, prior to August 23, 2007, is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND Additional development is needed prior to further disposition of the claim of entitlement to a TDIU. The Veteran's attorney, most recently in a letter dated in February 2013, asserts that the Veteran has been unemployable since January 1, 2004, and submitted record of the Veteran's income. As discussed above, in July 2010, the Veteran expressed disagreement with the November 2009 denial of his TDIU claim. Also in July 2010, he filed a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. As the RO considered the Veteran's claim of entitlement to a TDIU moot because his PTSD had been rated as 100 percent disabling as of August 23, 2007, the RO did not fully develop the Veteran's claim and seek additional information subsequent the submission of the VA Form 21-8940. However, the issue of entitlement to a TDIU is on appeal pursuant to Rice. Also, as noted above in the Introduction, in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU rating, even where a 100 percent schedular rating has also been granted. Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2012). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2012). Individual unemployability must be determined without regard to any non-service connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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). Moreover, the degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is indeed "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether the Veteran is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA rating schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id; see also 38 C.F.R. §§ 4.1, 4.15 (2012). The Veteran has meet the schedular requirements for a TDIU during the entire appellate period, as he has had a combined rating of at least 70 percent, with at least one disability rated at 40 percent or more. 38 C.F.R. § 4.16(a) (2012). In a January 2002 statement, the Veteran asserted that he was unable to work due to physical problems; and in an October 2003 statement, the Veteran's attorney asserted that the Veteran was unable to work due to his service-connected knee disabilities. At the time of the December 2003 VA examination, the Veteran reported that he was on medical leave after 32 years of working as a tool setter for physical problems and reported that there was no emotional reason why he would be unable to work. At the time of the August 2007 VA examination, the examiner reported that the Veteran had not been able to work for the past four years due to the debilitating effects of his multiple sclerosis. He further noted that while the Veteran appears to be permanently and totally disabled, his multiple sclerosis so dominated the Veteran's functioning that he could not differentiate it from his psychiatric disorders in terms of what was impairing or preventing him from working. The Board notes that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA) for his knee disabilities, and his records from such a claim are associated with his claims file. On remand, the RO must secure a new VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, if the former copy, dated in July 2010, is outdated. The RO must seek VA Forms 21-4192, Request for Employment Information in Connection with Claim for Benefits, from the Veteran's most recent employers, as identified in his VA Form 21-8940. The RO must then provide the Veteran a VA examination for the purpose of determining if and when the Veteran's service-connected disabilities alone, singly or in the aggregate, rendered him unable to obtain and maintain substantially gainful employment. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); Robinette v. Brown, 8 Vet. App. 69 (1995). Accordingly, the case is REMANDED for the following action: 1. If the July 2010 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, is outdated, contact the Veteran and request that he submit an updated form. If not, forward a VA Form 21-4192, Request for Employment Information in Connection with Claim for Benefits, to the Veteran's most recent employers, as identified in his VA Form 21-8940. Any and all responses, including negative responses, must be properly documented in the claims file and the Veteran must be so informed. 2. Then, schedule the Veteran for a VA examination with an appropriate examiner. The examiner must specifically opine as to whether the Veteran's service-connected disabilities alone, singly or in the aggregate, preclude him from obtaining and maintaining substantially gainful employment versus just marginal employment, considering his level of education, prior work experience, special training, etc., but not his age or impairment attributable to disabilities that are not service connected, specifically, multiple sclerosis. The examiner must give some indication as to whether any employment in which the Veteran may engage is only possible with special consideration or accommodation (i.e., just marginal employment versus substantially gainful employment). The examiner must provide the date upon which the Veteran became precluded from obtaining and maintaining substantially gainful employment due to his service-connected disabilities. The examiner must be made aware that the Veteran's service-connected disabilities include: (1) PTSD, to include major depressive disorder and adjustment disorder; (2) residuals, right knee surgeries with arthritis and scar; (3) residuals, left knee surgeries with arthritis; (4) gastroesophageal reflux disorder (GERD) with gastric antrum erosion; (5) left hip bursitis; (6) right hip bursitis; and (7) erectile dysfunction. The claims file, to include a copy of this Remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. A complete rationale should be provided for any opinion given. The opinion should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the requested opinion cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The claims file must be properly documented regarding any notifications to the Veteran as to the scheduled examination. 3. Following completion of the foregoing, review the claims file and ensure that all of the foregoing development has been conducted and completed in full. In particular, determine whether the examiner has responded fully to the questions posed by the Board. If not, corrective action is required. 38 C.F.R. § 4.2 (2012). 4. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim, considering any additional evidence added to the record and specifically considering the holdings in Rice and Bradley. If the action remains adverse to the Veteran, provide the Veteran and his attorney with a Supplemental Statement of the Case and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by not attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). ______________________________________________ S.L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs