Citation Nr: 1317527 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 03-03 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to July 27, 2009, and to a rating in excess of 70 percent from July 27, 2009 to December 27, 2012, on a schedular basis only. 2. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to July 27, 2009, and to a rating in excess of 70 percent from July 27, 2009 to December 27, 2012, on an extraschedular basis. 3. Entitlement to a total rating based upon individual unemployability (TDIU) from December 28, 2012 to the present day. 4. Entitlement to a total rating based upon individual unemployability (TDIU) prior to December 28, 2012. 5. Entitlement to service connection for a vaginal disorder, to include Human Papillomavirus (HPV). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran had active service in the United States Army from February 1999 to September 2000. Procedural history This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO awarded the Veteran service connection for PTSD, and assigned an initial disability rating of 50 percent, effective September 25, 2000. In the same decision, the RO also denied the Veteran's service-connection claim for a vaginal disorder and her claim for TDIU. The Veteran disagreed with her assigned initial rating of 50 percent for PTSD, and with the RO's denials of her vaginal disorder and TDIU claims. She timely perfected this appeal as to all three issues. The St. Petersburg, Florida, RO currently has jurisdiction over the Veteran's claims. During the pendency of the appeal, the RO awarded higher staged ratings for the Veteran's PTSD from 50 to 70 percent, effective July 27, 2009 and from 70 to 100 percent effective December 28, 2012. Because the Veteran has been granted the maximum PTSD disability rating as of December 28, 2012 to the present day, the appeal before the Board relating to PTSD is limited to the rating of this condition prior to December 28, 2012. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In an October 2007 decision, the Board denied each issue on appeal. The Veteran appealed this October 2007 decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2009 Order, the Court, pursuant to a joint motion for remand (JMR), vacated the Board's decision and remanded the case for compliance with the instructions of the JMR. The Board has since remanded the Veteran's claims on two more occasions, in March 2011 and October 2012, for additional evidentiary development. The Veteran's claims file has been returned to the Board for additional appellate review. Clarification of issues on appeal Regarding the Veteran's service-connection claim for a vaginal disability, the claim was originally raised and adjudicated as a claim of service connection for vaginal discharges. During the course of the appeal, it has become clear that the Veteran does have a vaginal disability, namely HPV. See the January 2013 VA examiner's gynecological examination report. Therefore, to ensure that the full scope of the Veteran's service-connection claim is considered, the Board has recharacterized the issue as a claim of service connection for any vaginal disability, to include HPV. The Veteran is not prejudiced by this recharacterization, as it ensures that any vaginal disability reasonably encompassed by her original claim will be considered. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As will be discussed below, with respect to the Veteran's claim for a higher initial disability rating for PTSD, the agency of original jurisdiction (AOJ) failed to comply with the Board's prior remand instructions to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for consideration of whether higher disability ratings may be warranted on an extraschedular basis. As such, that part of the inquiry must be remanded again for additional development. Having stated as much, the Board notes that Veteran would not be prejudiced in any way by the present adjudication of her initial rating claim for the time period under review [September 2000 to December 2012] on a schedular basis alone, as all the relevant evidence pertaining to this period is already of record. Thus, the Board will bifurcate the issue at this time, and will adjudicate the question of whether higher initial ratings may be awarded on a schedular basis for the Veteran's PTSD for all time periods prior to the date her total 100 percent schedular rating became effective, December 28, 2012. To ensure compliance with the Board's prior remand instructions, the Board will then remand the parallel question of whether an extraschedular rating may be warranted during the same time period, for referral to the Under Secretary for Benefits or the Director of the C&P Service under the provisions of 38 C.F.R. § 3.321(b). Finally, as will be discussed below, because the RO has awarded the Veteran a total 100 percent disability rating on a schedular basis for PTSD as of December 28, 2012, the question of whether TDIU is warranted based on this, her only service-connected disability, for the period following December 28, 2012 is rendered moot. Thus, the Board will dismiss that portion of the Veteran's TDIU claim herein. The Board however wishes to make clear that the question of whether TDIU is warranted at any time prior to December 28, 2012 remains on appeal, and is discussed in the REMAND section of this decision below. Referred issue As discussed in the Board's October 2012 remand, the issue of entitlement to service connection for a bilateral knee disorder, including as secondary to service-connected disabilities, was raised by the Veteran's accredited representative in the August 2012 written brief to the Board. It is noted however, that service connection for a bilateral knee disorder was initially denied by the RO in March 2002, and the last final disallowance for reopening was in a December 2007 rating decision. See 38 U.S.C.A. § 7105(c) (West 2002); see also 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012). Therefore the correct issue is whether new and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for a bilateral knee disorder. This issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Accordingly, the Board does not have jurisdiction over this claim and it is again referred to the AOJ for appropriate action. Remanded issues The Veteran's service connection claim for a vaginal disorder, her claim for higher initial ratings for PTSD on an extraschedular basis, and her claim for TDIU prior to December 28, 2012 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period from September 25, 2000 to July 26, 2009, the Veteran's PTSD manifested in disability tantamount to occupational and social impairment with reduced reliability and productivity, warranting the assignment of a 50 percent schedular disability rating. 2. For the period from July 27, 2009 to December 27, 2012, the Veteran's PTSD manifested in disability tantamount to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, warranting the assignment of a 70 percent schedular disability rating. 3. As a 100 percent schedular disability rating is assigned effective December 28, 2012 for the Veteran's only service-connected disability, PTSD, the claim of entitlement to TDIU from December 28, 2012 to the present day is rendered moot. CONCLUSIONS OF LAW 1. For the period from September 25, 2000 to July 26, 2009, the criteria for an initial evaluation higher than 50 percent for PTSD, on a schedular basis alone, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 2. For the period from July 27, 2009 to December 27, 2009, the criteria for an initial evaluation higher than 70 percent for PTSD, on a schedular basis alone, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 3. The assignment of a 100 percent schedular evaluation for service-connected PTSD as of December 28, 2012, in this case alone, renders the TDIU appeal moot as it applies for the time period from December 28, 2012 to the present day. 38 C.F.R. § 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall concerns As noted above, since the Board's now-vacated October 2007 decision, the Board remanded the Veteran's appeal on two occasions, first in March 2011 and again in October 2012. In pertinent part, with respect to the issue being decided herein, the Board instructed the agency of original jurisdiction (AOJ) in March 2011 to (1) request information about, and obtain any identified relevant updated treatment records, (2) schedule the Veteran for a social and industrial survey to clarify her medical, social, educational, and employment history, (3) schedule the Veteran for an updated VA examination to assess the severity of her PTSD; and (4) readjudicate the appeal. In compliance with these instructions, the Veteran's updated records were obtained and were associated with her electronic claims folder as maintained by the Virtual VA System. The Veteran underwent a VA psychiatric examination in September 2011 and a social survey in October 2011, and the corresponding reports of such assessments are also of record. The AOJ then readjudicated the Veteran's PTSD initial rating claim in a May 2012 Supplemental Statement of the Case (SSOC). In October 2012, the Board similarly instructed the AOJ to (1) request information about, and obtain any identified relevant updated treatment records, (2) schedule the Veteran for an updated VA examination to assess the severity of her PTSD, and (3) readjudicate the appeal. As above, updated records were obtained and uploaded to the Veteran's electronic claims file. In addition, the Veteran appeared for a VA psychiatric examination in December 2012, the report of which is also of record. Finally, the AOJ readjudicated the Veteran's initial rating claim for PTSD in a February 2013 SSOC. Thus, there is compliance with the Board's remand instructions as they pertained to the issue the Board will decide below-namely, entitlement to an initial rating greater than 50 percent for PTSD prior to July 27, 2009, and greater than 70 percent from July 27, 2009 to December 27, 2012, on a schedular basis only. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (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 of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). With respect to the Veteran's PTSD claim, the Board notes that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91; see also VAOPGCPREC 8-2003 (December 22, 2003). As such, because service connection for the Veteran's PTSD has already been granted, VA's VCAA notice obligations with respect to the issue of entitlement to a higher initial evaluation for such disability are 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) (noting that where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, post-service VA treatment records, her Vocational Rehabilitation records, her own lay statements and the lay statements of her mother, sister and employers have been obtained. Neither the Veteran nor her representative has identified any outstanding evidence, to include any other medical records, that could be obtained to substantiate the claim addressed herein. As discussed below, while there may be VA treatment records dated subsequent to December 28, 2012 that remain outstanding, such records would not be relevant to the Veteran's claim for a higher initial rating during stages with ending dates prior to December 28, 2012. Indeed, the Veteran's claims file appears to have ample and complete medical evidence dated up to and including December 2012, such that the Board can make an informed decision on the merits of the Veteran's initial rating claim on a schedular basis. With respect to the VA examinations conducted in conjunction with this appeal, and relevant to the time periods at issue, the Board observes that the findings contained therein are adequate for adjudication of the Veteran's claim. The Veteran appeared for VA psychiatric examinations in August 2001, November 2009, September 2011 and December 2012 [she failed to report to an examination scheduled in April 2006]. The respective examination reports reflect that each examiner was aware of the Veteran's pertinent medical history, recorded her current complaints, conducted appropriate examinations, and rendered appropriate findings and diagnoses consistent with the other evidence of record. Neither the Veteran nor her representative has challenged the adequacy of any of these examinations. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions concerning the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claim has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the issue on appeal were nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of her claim. See 38 C.F.R. § 3.103 (2012). Schedular Rating of PTSD Legal criteria Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). The Veteran's psychiatric disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 [PTSD] (2012). Under the current criteria, Diagnostic Code 9411 is deemed by the Board to be the most appropriate primarily because it pertains specifically to the diagnosed disability in the Veteran's case. In any event, with the exception of eating disorders, all mental disorders including PTSD are rated under the same criteria in the Rating Schedule. Therefore, rating under another diagnostic code would not produce a different result. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9411. The pertinent provisions of 38 C.F.R. § 4.130 relating to rating mental disorders read as follows: 100 Percent: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 70 Percent: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 50 Percent: 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. 38 C.F.R. § 4.130, Diagnostic Codes 9411 and 9440 (2012). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears 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) (2012). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), page 32). According to the DSM-IV, GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. GAF scores ranging between 51 and 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting] or any serious impairment in social, occupational or school functioning [e.g., no friends, unable to keep a job). The Board notes that an examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. Analysis In Fenderson v. West, 12 Vet. App. 119 (1999), the Court discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. In this case, staged ratings have already been assigned. Indeed, an initial rating of 50 percent is in effect from the date of service-connection, September 25, 2000, to July 26, 2009, and a 70 percent rating is in effect from July 27, 2009 to December 27, 2012. The key question at issue in this case is whether disability ratings higher than 50 and 70 percent respectively may be awarded at any time during these time periods. As noted above, from December 28, 2012 to the present day, a total schedular rating of 100 percent is in effect. As such, the Board need not consider whether a higher rating may be assigned for the time period subsequent to the effective date of this total 100 percent rating. At the outset, the Board observes that during the course of the appeal period, the Veteran has also been diagnosed with mental health disabilities other than PTSD, to include Cluster B Personality disorder and mood disorder. See the September 2011 VA examiner's report, at 1; see also the December 2012 VA examiner's report, at 2. The Board is precluded from differentiating between symptomatology attributed to a service-connected disability and a nonservice-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In this case, with respect the Veteran's PTSD and personality disorder, the September 2011 VA examiner pertinently indicated that there was significant overlap of symptoms, and that it is not possible to differentiate what portion of the Veteran's occupational and social impairment was attributable to either disability. See the September 2011 VA examiner's report, at 3. Similarly, with respect to the Veteran's PTSD and mood disorder, although the December 2012 VA examiner did separately list which symptoms were attributable to the Veteran's PTSD and which are attributable to the Veteran's mood disorder, the examiner pertinently also concluded that it was not possible to differentiate what portion of the Veteran's occupational and social impairment is caused by each mental disability. Indeed, the examiner specifically indicated that het Veteran's PTSD and mood disorder are chronic, and biologically and behaviorally interactive. See the December 2012 VA examiner's report, at 4. Thus, in light of the fact that mental health disabilities are largely rated on the overall impact such disabilities have on an individual's occupational and social impairment, to the extent that the Veteran's mental health symptoms overlap, the Board will resolve all doubt in the Veteran's favor, and consider these symptoms to be related solely to her service-connected PTSD in the adjudication of this claim. The focus of this inquiry is not necessarily limited to analysis of the symptomatology listed in the VA rating schedule [see Mauerhan v. Principi, 16 Vet. App. 436 (2002)], but includes analysis of how the Veteran's PTSD symptomatology affects her "occupational and social impairment," if at all. Indeed, with respect to the 70 percent rating in particular, the Court of the Appeals for the Federal Circuit recently clarified that "[e]ntitlement to a 70 percent disability rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Applying the lay and medical evidence of record to the rating criteria for PTSD, the Board concludes that on a schedular basis only, the Veteran's overall disability picture for PTSD during this period is most nearly approximated by the currently assigned 50 percent from September 25, 2000 to July 26, 2009, and the 70 percent rating from July 27, 2009 to December 27, 2012. A. September 25, 2000 to July 26, 2009 The Board initially notes that the Veteran's PTSD did not manifest in total occupational and social impairment during any time during this period from 2000 to 2009, warranting the assignment of a 100 percent rating. Although it is clear that the Veteran had significant trouble maintaining work during this time period due to irritability and poor performance, she was indeed able to find employment on numerous occasions, to include as an au pair/nanny for two different families from October 2005 to September 2007. Further, during this time period, she earned a bachelor's degree in computers and foreign languages, and also started graduate school. With respect to social impairment, although she did express a desire for isolation, she did have friends with whom she preferred to speak about her problems. See the Veteran's May 29, 2001VA Comprehensive Evaluation (noting she is active in church activities, and tends to isolate herself with the exception of two friends); see also the Veteran's June 4, 2004 statement (indicating that she does not trust anyone for counseling, but her friends do help her). Finally, and crucially, at no point from September 2000 to July 2009 did the Veteran exhibit or describe experiencing any of the symptoms generally associated with total occupational and social impairment as discussed in the rating criteria for the application of a 100 percent rating. Thus, a 100 percent rating is not for application for this time period. The Board also finds that the criteria for a 70 percent rating are not satisfied at any time between September 2000 and July 2009. In Vazquez-Claudio, the Federal Circuit determined that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio, 713 F.3d at 117. While it is clear that the Veteran's PTSD symptoms have adversely affected her work, family relations and mood to a degree during the period under review from September 2000 to July 2009, the evidence does not demonstrate the presence of sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas. The Board recognizes that the Veteran overdosed on medication during her period of active duty service, and there is some question as to whether this was an attempt at suicide. Crucially however, for all times subsequent to her separation from service in September 2000 to July 2009, the Veteran has either specifically denied experiencing any suicidal ideation, or has indicated that she tries not to let her PTSD get to her to the point where she contemplates suicide. See, e.g., the August 2001 VA examiner's report, at 2 (noting that when asked about suicidality, she responded, "I try not to let this stuff get to me."); see also VA treatment reports dated on May 29, 2001, January 3, 2002, May 7, 2002, and June 30, 2003 (each indicating that the Veteran had no suicidal ideation). The Veteran stopped receiving mental health treatment for a period after this, and also failed to report to a 2006 VA mental health examination. She subsequently denied suicidal ideation again at VA consultations occurring on October 22, 2008 and January 26, 2009. The first indication in the record suggesting that the Veteran had developed renewed suicidal ideation is noted in a VA suicide hotline report dated on November 2, 2009, indicating that the Veteran called on that day with suicidal thoughts. Notably, these thoughts manifested after the effective date of her increased rating to 70 percent. From the time period from September 2000 to July 2009, the evidence also fails to demonstrate that the Veteran experienced obsessional rituals which interfere with routine activities, intermittently illogical, obscure or irrelevant speech, near-continuous panic or depression affecting her ability to function independently, appropriately or effectively [the Veteran lived on her own in large part during this time period, earning a bachelor's degree and gaining admission to graduate school], spatial disorientation, neglect of personal appearance and hygiene, or inability to establish and maintain effective relationships. Indeed, as noted above, although the Veteran has indicated a preference for isolation and strained relationships with her mother, she has referenced the fact that she does have some friends with whom she maintains a relationship. Thus, inability to establish and maintain an effective relationship is also not demonstrated during the time period under review. The Veteran's PTSD symptoms did appear to cause her difficulty in adapting to stressful circumstances, including at work or a worklike setting. The evidence clearly shows that although the Veteran was able to secure employment on multiple occasions, she has had difficulty maintaining employment due to self-described irritability and frequently-articulated paranoia about many of her superiors or co-workers, who she believed were harassing her and/or had intent to assault her. The record demonstrates that at times she was let go, and at others she voluntarily left her employment. Her longest period of employment during the time period of review was as an au pair from October 2005 to September 2007 for two different families. See the Veteran's list of professional experience, submitted in July 2009. Thus it appears that the Veteran's difficulty in adapting to stressful circumstances at work or in a worklike setting, to include her stated inability to trust many of her superiors or co-workers [especially African American males], did in fact contribute to deficiencies in areas such as work, as contemplated by 38 C.F.R. § 4.130 for the 70 percent rating. Pertinently however, for the assignment of a 70 percent disability rating, the criteria require occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. The Board finds that from September 2000 to July 2009, the Veteran's PTSD symptoms, to include her difficulty to adapt to stressful circumstances, may have affected the Veteran's schooling, family relations, judgment, thinking or mood, but did not cause the occupational and social impairment with deficiencies in those areas as contemplated by the Diagnostic Criteria for the 70 percent rating. With respect to school, although the Veteran did have a scholarship revoked, she did successfully earn a bachelor's degree in computers and foreign languages during the period under review [with a grade point average over 3.0], and was admitted into graduate school. She was also an active participant in VA's Vocational Rehabilitation Program. The Board recognizes that she ultimately had to drop out of graduate school on account of poor performance in 2009. Crucially, the Veteran informed VA of this setback on July 27, 2009, the date upon which her increased rating to 70 percent was made effective. With respect to family relations, although the Veteran has reported that she and her mother do not get along sometimes, and that the Veteran does not want family involved in her counseling, her mother and sister have submitted statements in support of the Veteran's claim revealing that they were very supportive of her and care about her very much. Neither family member reported a poor relationship with the Veteran. While the Veteran is estranged from her father, such estrangement began long before she enlisted in the Marine Corps. With respect to judgment, the evidence of record during the time period from September 2000 to 2009 consistently indicates that the Veteran had intact judgment. Similarly, with respect to thinking, although the Veteran's PTSD has caused intrusive thoughts, she regularly denied delusional thought processes or psychotic thinking, and at times showed problem solving skills and use of support systems in a positive manner. See, e.g., the Veteran's January 3, 2002 VA treatment report; see also her June 30, 2003 VA Psychiatry Note. Indeed, VA determined her to be a viable candidate for vocational rehabilitation as she earned her college degree during this period of time. Finally, with respect to mood, it is clear that the Veteran experienced problems with depression and anxiety due to her PTSD between September 2000 and July 2009. However, the evidence during this time period shows these problems manifested in panic attacks occurring more than once a week and disturbances of motivation-symptoms clearly contemplated by the ratings criteria warranting a 50 percent rating. The Board adds that even if the Board were to find that the Veteran's difficulty to adapt to stressful circumstances caused occupational and social impairment with deficiencies in mood as contemplated by the criteria for the 70 percent, the Veteran's total disability picture does not show deficiencies in most areas in addition to mood, to include school, family relations, thinking and judgment discussed above. While an examiner's classification of the level of psychiatric impairment by a GAF score is not determinative of the percentage rating to be assigned, the Board notes that the Veteran's GAF scores during the period under review from September 2000 to July 2009 were predominately in the upper 50s and low 60s, indicative of mild to moderate symptoms. See, e.g., the Veteran's VA treatment reports dated May 21, 2001 (GAF 62); June 30, 2003 (GAF 60); and the September 2011 VA examiner's report, at 7 (identifying prior GAF scores of 60 in October, November and December 2008, and 56 in March 2009 and 58 and April 2009). The Board does recognize that the Veteran was assigned a GAF of 47 on one instance during the entire nine year period under review in August 2001, but notes that even if such is not a medical outlier, the evidence of record as a whole weighs against a finding that the Veteran's PTSD manifested in symptoms of similar severity, frequency or duration as those generally contemplated by the assignment of a GAF of 47 during the period from September 2000 to July 2009. The Board is aware of the Court's holding in Mauerhan, referenced above. In evaluating to what extent the Veteran's PTSD symptomatology impairs her occupational and social abilities, to include the impact of those symptoms listed in the ratings criteria, as well as those not listed in the criteria that are described by the Veteran and the medical examiners of record [such as the Veteran's general fear of African American men], the Board has identified no other aspects of the Veteran's service-connected PTSD which would enable it to conclude that the criteria for a rating greater than 50 percent have been approximated at any time during the period under review, and the Veteran and her representative have pointed to no such symptomatology. In not granting a 70 percent or 100 percent schedular rating for PTSD during the time period from September 2000 to July 2009, the Board is not minimizing the severity of the Veteran's symptoms. Indeed, the Board is very cognizant of the fact that the "degree of impairment in her relationships, work and quality of life due to PTSD and related depression is considerable." See the August 2001 VA examiner's report, at 3. That stated, the Veteran's symptoms are not so severe that they cause occupational and social impairment with deficiencies in most areas, or total occupational or social impairment. Indeed, the level of impairment that is demonstrated is already contemplated in the assignment of a 50 percent rating for this time period. Based on all of the above, the Board finds that an initial rating greater than 50 percent for PTSD on a schedular basis alone is not warranted at any time between the effective date of service-connection, September 25, 2000 and July 26, 2009. The Veteran's application for a higher initial schedular rating for her service-connected PTSD for this period is denied. B. July 27, 2009 to December 27, 2012 On July 27, 2009, the Veteran filed a statement with VA indicating that it has been "more increasingly difficult to retain employment," and increasingly difficult to go to work. She indicated that she started having nightmares about something bad that was going to happen to her, and that she had become increasingly irritable and combative. As indicated above, in this July 2009 correspondence, she also indicated to VA for the first time that she was dismissed from her master's program, which was a "tremendous blow" to her psyche, as she had been a great student in the past, but now was a "failure." She also indicated that she stopped going to church, and stopped communicating with close friends. Just months later, in November 2009, the Veteran phoned VA's suicide hotline with thoughts of suicide. She appeared for a VA examination in December 2009, and after review of the evidence of record, and upon examination of the Veteran, the VA examiner specifically indicated that the Veteran's PTSD manifested in occupational and social impairment with deficiencies in most areas, to include thinking, work, mood, school. See the December 2009 VA examiner's report, at 4. Subsequently, she again called the suicide hotline in February 2011. The Board finds that the AOJ accurately determined that July 27, 2009 was the point in time when the evidence of record demonstrated that the Veteran's PTSD worsened in severity, warranting a 70 percent disability rating. Crucially however, at no time during the period from July 27, 2009 to December 27, 2012 does the evidence show that the Veteran's PTSD manifested in total occupational and social impairment, warranting a higher 100 percent rating. Indeed, at a July 20, 2011 VA Sexual Trauma Consult, the Veteran noted that she was previously in relationship for about six months, and had three close friends, and liked to travel, read, watch TV and exercise. Her functional status was described as "independent." The Board adds that at the time of this July 20, 2011 Consult, the Veteran was described as was well-groomed, cooperative but tearful when discussing her traumas, and as having a euthymic mood, stable affect, coherent speech, well-organized thought processes, and relevant thought content. She experienced no delusions, hallucinations, suicidal or homicidal ideation, was oriented in all spheres, had intact memory and good judgment and insight. She was assigned a GAF of 52. Indeed, at no time from July 2009 to December 2012 did the Veteran exhibited symptoms that are identified by the ratings criteria as potentially found in those with total occupational and social impairment warranting a 100 percent disability rating. Significantly, it was not until the Veteran appeared for a December 28, 2012 VA examination when it was first noted that the Veteran's PTSD manifested in some of these very severe symptoms, to include a persistent danger in hurting self or others and neglect of personal appearance and hygiene. The AOJ increased the Veteran's disability rating to 100 percent, as of the date of this December 2012 examination report. Because the evidence fails to show that the Veterans' PTSD manifested in sufficient symptoms of the kind listed in the 100 percent requirements, or others of similar severity, frequency or duration, that cause total occupational and social impairment, an initial rating greater than70 percent for PTSD on a schedular basis alone is not warranted at any time between July 27, 2009 and December 27, 2012. The Veteran's application for a higher initial schedular rating for her service-connected PTSD for this period is also denied. Entitlement to TDIU from December 28, 2012 to the present day As noted above, the Veteran has been awarded a 100 percent schedular rating for her only service-connected disability, PTSD, effective December 28, 2012. Thus, the question of whether the Veteran is entitlement to TDIU from December 28, 2012 to the present day is rendered moot, and is therefore dismissed. On June 7, 1999, VA's General Counsel issued VAOGCPREC 6-99, which addressed questions related to whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that precedential opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU and required 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). However, 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 the TDIU rating, even where a 100 percent schedular rating has also been granted. See also Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). In view of the issuance by the United States Court of Appeals for Veterans Claims of its decision in Bradley v. Peake, 22 Vet. App. 280 (2008), which takes a position contrary to the one reached in the precedent opinion, the General Counsel subsequently took action in November 2009 to withdraw the 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 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 VAOGCPREC 6-99. In this case, the Veteran is service-connected for PTSD alone, at 100 percent as of December 28, 2012, and the Veteran is only contending that she is unemployable due to her service-connected PTSD. Therefore, the decisions in Bradley and Buie do not apply and as noted in Green, the claim for TDIU is moot as it pertains to the time period from December 28, 2012 to the present day. The Board wishes to make clear that the Veteran's TDIU claim as it pertains to time periods prior to December 28, 2012 is not moot, and will be discussed in the Remand section of this decision below. ORDER An initial rating greater than 50 percent for PTSD from September 25, 2000 to July 26, 2009 is denied on a schedular basis alone. An initial rating greater than 70 percent for PTSD from July 27, 2009 to December 27, 2012 is denied on a schedular basis alone. As a 100 percent schedular disability rating for PTSD is already in effect from December 28, 2012 to the present day, the appeal for TDIU as it pertains to this time period has been rendered moot, and is dismissed. REMAND The Board regrets having to remand the remainder of this appeal another time. However, this remand is necessary to ensure compliance with the Board's prior remand instructions, and to afford the Veteran all consideration due to her under the law. Noncompliance with the Board's October 2012 Remand Instructions In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims held that compliance with remand instructions is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. In the body of its October 2012 remand, the Board observed that since September 2000, the Veteran had been employed and unemployed on multiple occasions. The Veteran reported anxiety and irritability symptoms at work that reasonably could be interpreted as interfering with her employment, and could be associated with her PTSD. The Board concluded that "marked interference with the Veteran's employment - meaning above and beyond that contemplated by her schedular rating for PTSD has indeed been raised by the record." Under these circumstances, the Board indicated that it must refer this issue for all appropriate development, to include an extraschedular consideration under 38 C.F.R. § 3.321(b). In the action paragraphs following this discussion, the Board instructed that the Veteran be scheduled for a VA psychiatric examination to determine the nature and severity of her service-connected PTSD. This examination took place in December 2012. Based on these examination results, the AOJ awarded the Veteran a total disability rating for PTSD, currently in effect from the date of the examination to the present day. Notably, the AOJ did not award higher disability ratings for the Veteran's PTSD at any time prior to December 2012 on a schedular basis, nor did it refer the question of whether a disability rating greater than those currently assigned for the period prior to December 2012 can be awarded on an extraschedular basis to the Under Secretary of Benefits or the Director of the C&P Service. Indeed, the Board specifically instructed on page 9 of the October 2012 remand that "if practicable"-that is, if a total schedular rating for the entire appeal period is not awarded upon readjudication-this referral to C&P services should be performed. As discussed above, the Board has already adjudicated whether higher initial ratings may be warranted for PTSD dating from September 2000 to December 2012 on a schedular basis only. On remand, this case should be referred to the Under Secretary for Benefits or the Director of C&P Services for extraschedular consideration for the same time period, as per the Board's October 2012 instructions. VA medical opinion Also in October 2012, the Board instructed that a new VA examination should be scheduled to evaluate the nature and etiology of any diagnosed vaginal and/or gynecologic pathology, specifically HPV and any HPV residuals. This examination took place in January 2013. Upon review of the record and after examination of the Veteran, the examiner determined that the Veteran only had HPV, and that it was less likely than not incurred in or caused by the her active duty service, to include her in-service sexual assault. By way of rationale, the examiner indicated that HPV infection is a very common condition, so common that most people get it soon after they start having sex. It appears that, based on this observation, the examiner concluded that the Veteran most likely contracted HPV prior to the incident claimed during her military service. See the January 2013 VA examiner's report, at 16. The Veteran's representative has correctly pointed out that the Veteran is presumed sound upon entrance into service, absent clear and unmistakable evidence to the contrary. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). The Veteran's examination upon entrance into service contained no vaginal examination results, and notably, there is documentation within the treatment records specifically indicating that the Veteran's prior Pap smear occurred at age 18, and the results were normal. See the Veteran's April 13, 2000 History - Part 2. It is in no way clear and unmistakable that the Veteran HPV originated prior to service, and the January 2013 VA examiner offered no clinical explanation as to why she believed it was more likely that the Veteran contracted HPV prior to service in light these in-service references to pertinently normal test results at age 18. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Because the January 2013 VA examiner inadequately discussed the etiology of the Veteran's HPV, on remand, a new medical opinion must be obtained addressing whether it is as likely as not that the Veteran's HPV is related to her in-service sexual assault. Adjudication of Intertwined Issue Finally, as noted above, the question of whether a TDIU award is warranted at times prior to December 28, 2012 remains on appeal. Crucially however, this TDIU claim is inextricably intertwined with the Veteran's initial rating claim for PTSD and her service-connection claim for a vaginal disability. In other words, if a higher disability rating is awarded for the Veteran's service-connected PTSD on an extraschedular basis, or if service connection for a vaginal disability is awarded, such may impact the outcome of the Veteran's TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). As such, action on the Veteran's TDIU claim for all times during the appeal period prior to December 28, 2012 is deferred. Accordingly, the case is REMANDED to the AOJ for the following action: 1. With any needed assistance from the Veteran, request and obtain the Veteran's updated VA medical records relating to any treatment received since November 2012 for her claimed vaginal disability, to include HPV. 2. After obtaining any available records, request and obtain a medical opinion from an physician other than the physician who administered the Veteran's January 2013 VA gynecologic examination, addressing the etiology of the Veteran's vaginal disability. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) and a copy of this Remand should be made available to and be reviewed by the reviewing physician examiner, and it should be confirmed that such records were available for review. The reviewing physician is specifically requested to determine if it is as likely as not (50 percent or greater probability) that the Veteran has a vaginal disability, to include HPV and/or any HPV residuals, that had its onset in or is otherwise related to the Veteran's period of active service, specifically her in-service sexual assault. In particular, the examiner should discuss the conclusions of the January 2013 VA examiner, as well as the Veteran's in-service treatment report indicating that her last Pap smear occurred when she was 18, and was normal. See the Veteran's April 13, 2000 History - Part 2. A rationale for all opinions expressed should be provided. If the reviewing physician cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Refer this case to the Under Secretary for Benefits or the Director of Compensation and Pension (C&P) Service for consideration of whether an extraschedular rating is warranted for the Veteran's PTSD for the time period between September 25, 2000 and December 27, 2012. 4. Upon receipt of the Under Secretary's or Director's report, and after undertaking any additional development deemed necessary, readjudicate each of the following claims: (1) entitlement to an initial rating greater than 50 percent for PTSD prior to July 27, 2009 on an extraschedular basis only; (2) entitlement to an initial rating greater than 70 percent for PTSD from July 27, 2009 to December 27, 2012 on an extraschedular basis only; (3) entitlement to TDIU at any time prior to December 28, 2012; and (4) entitlement to service connection for a vaginal disability, to include HPV. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. 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). ______________________________________________ K. A. KENNERLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs