Citation Nr: 1318505 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 10-02 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for service-connected posttraumatic stress disorder (PTSD), evaluated as 50 percent disabling prior to October 2, 2010, and as 70 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from April 1952 to January 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 decision rendered by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appealed, and in August 2010, the Board remanded the claim for additional development. In December 2011, the RO granted the claim, to the extent that it assigned a 70 percent rating as of October 2, 2010. In January 2012, the Board granted the claim, to the extent that it assigned a 70 percent rating as of April 16, 2009. The Veteran appealed to the United States Court of Appeals for Veterans Claims ("Court"). In February 2013, the Court issued an Order and a Memorandum Decision that vacated the Board's January 2012 decision. In view of the Court's Order to vacate the entire Board's January 2012 decision, the issue on appeal is as characterized on the title page. In December 2009, the Veteran testified during a hearing held before RO personnel. A transcript of the proceeding is of record. In March 2011, the Veteran withdrew his request for a hearing before a Veterans Law Judge. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT As of April 16, 2009, the Veteran's PTSD is shown to have been productive of symptoms that include nightmares, sleep disturbance, intrusive thoughts, depression, and avoiding crowds, and occupational and social impairment, with deficiencies in most areas, but it is not shown to have been manifested by total occupational and social impairment. CONCLUSION OF LAW As of April 16, 2009, the criteria for an evaluation of 70 percent, and no more, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating The Veteran asserts that he is entitled to an increased rating for his PTSD. During the hearing before RO personnel in December 2009, the Veteran stated that he had nightmares "nearly every night." He also reported having flashbacks, problems with his memory, and feeling unsafe in his environment and around people. In May 2005, the RO granted service connection for PTSD, evaluated as 50 percent disabling. In an October 2007 decision, the Board denied a claim for an increased rating. In April 2009, the Veteran filed a claim for an increased rating. In July 2009, the RO denied the claim. The Veteran appealed. In December 2011, following a Board remand, the RO granted the claim, to the extent that it assigned a 70 percent rating as of October 2, 2010. Since this increase did not constitute a full grant of the benefits sought, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In January 2012, the Board granted the claim, to the extent that it assigned a 70 percent rating as of April 16, 2009. The Veteran appealed to the Court, and in February 2013, the Court issued an Order and a Memorandum Decision that vacated the Board's January 2012 decision. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation 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. The RO has evaluated the Veteran's PTSD under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under DC 9411, a 50 percent rating is warranted where the disorder is manifested by 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. Id. A 70 percent rating is warranted where there is 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 ideations; obsessional rituals that 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. Id. A 100 percent schedular evaluation is warranted when there is 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 of names of close relatives, own occupation, or own name. Id. The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). GAF 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). GAF scores ranging from 51 to 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). See Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994) ("QRDC DSM-IV"). Although some of the Veteran's recorded symptoms are not specifically provided for in the ratings schedule (e.g., such symptoms as nightmares), the symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim. Mauerhan v. Principi, 16 Vet. App. 436 (2002). With regard to the history of the disability in issue, the Veteran had service in Korea, and his awards include the Purple Heart medal and Combat Infantryman Badge. There is no evidence of any relevant treatment during service, or until 2004, at which time he was first diagnosed with PTSD, and assigned GAF scores of 60 and 65. An April 2005 VA PTSD examination report contains a GAF score of 65, and shows that the Veteran reported that he had retired in 1991 after 32 years with a telephone company. VA progress notes, dated in 2005, note the use of Sertraline. In 2006, his GAF scores ranged from 50 to 52. A March 2007 VA PTSD examination report contains a GAF score of 52. The relevant evidence during the time period in issue consists of VA and non-VA reports, summarized as follows: A VA examination report, dated in July 2009, shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran stated that he had been married for 57 years. He stated that they went out once in awhile, that that he had "just a few friends." He described some worsening in his memory in the past two years. He also indicated that other than going to church on Sundays, he lost interest in socializing. The Veteran's spouse reported that he was overly irritable and also confirmed that he did not socialize. On mental status examination, the Veteran's mood was anxious. His thought process revealed a lot of hesitation, but his thought content was unremarkable. He had significant impaired sleep, had delayed sleep onset, and awoke 2-3 times per night often because of war-time nightmares. There were no delusions, hallucinations, inappropriate behavior, impaired impulse control, or suicidal ideation. Concerning the Veteran's functional status, the examiner noted that the Veteran endorsed irritability, hypervigilance, avoidance of crowds, insomnia, and lessened social interest. With regard to insight, he understood that he had a problem. With regard to judgment, he understood the outcome of behavior. Thought content was unremarkable. He had good self-control. Recent and remote memory was normal, and immediate memory was mildly impaired. The examiner indicated that PTSD did not result in total occupational and social impairment. PTSD signs and symptoms, however, did result in deficiencies in most areas, including mood, work, and family relations. A GAF score of 55 was assigned. A private neuropsychological screening report, from L.R.B., Ph.D., also dated in July 2009, notes that the Veteran did not socialize and depended upon his wife for all decision-making. While his long term memory was intact, he had poor short term memory and concentration problems. He did not drive a car for fear of getting lost. He reported sleep disturbances, flashbacks, hypervigilance, isolation from people, and increased startle response. The diagnostic impression was PTSD and major depression. A GAF score of 45 was assigned. The examiner stated that the Veteran required psychological and pharmacological intervention to reduce additional memory loss, depression, anxiety, and to learn PTSD coping skills. A report from Dr. B, dated in August 2010, notes that the Veteran had increased memory loss since her July 2009 report which was interfering with his daily functioning, and that his wife was now his caregiver. On examination, he was cooperative, relevant, and oriented times two. Speech was slow. Long term memory was intact. Short-term memory was poor. Attention was variable and concentration was poor. He performed five serial 7 subtractions with three errors. Thoughts were organized, with no evidence of psychosis. He reported transient suicidal ideation without plan. His personality tests were interpreted to show PTSD, major depression, anxiety and dependent personality features. His symptoms were noted to include flashbacks, hypervigilance, exaggerated startle response, avoidance, problems sleeping, poor stress coping skills, and impaired interpersonal relationships. The Axis I diagnoses were chronic PTSD, recurrent major depression, and severe cognitive disorder NOS (not otherwise specified). The Axis V diagnosis was a GAF score of 42. A VA PTSD examination report, dated in October 2010, shows that the examiner indicated that the Veteran's claims file had been reviewed. The Veteran was noted to be taking Prazosin and Gabapentin, and to have received both individual and group therapy, but to have discontinued group therapy due to feeling like he didn't fit in with younger veterans. He reported that he was married and had a good relationship with his wife, although his irritability sometimes caused problems, and that his irritability was worse if he did not sleep well. He stated that he and his wife went out once in awhile, but that he did not like crowds. There was no history of suicide attempts, violence or assaultiveness. On examination, he was clean and appropriately dressed. Speech was unremarkable. Affect was appropriate. Mood was dysphoric. He was easily distracted. He was able to do serial 7s, but could not spell a word forwards and backwards. He was oriented to person, time and place. Thought process and thought content were unremarkable. There were no delusions, hallucinations, inappropriate behavior, obsessive or ritualistic behavior, panic attacks, suicidal or homicidal thoughts. Impulse control was poor. He was able to maintain minimum personal hygiene. There was no problem with activities of daily living. With regard to judgment, he understood the outcome of behavior. With regard to insight, he understood that he had a problem. He had sleep impairment, with nightmares most nights; he felt tired and irritable during the day. Recent and remote memory was normal, and immediate memory was mildly impaired. The examiner stated that the Veteran had only age-related memory decline, and that his difficulty with immediate memory could partially be due to hearing impairment. The Veteran had recurrent and intrusive distressing recollections and recurrent distressing dreams. He made efforts to avoid thoughts, feelings, or conversations associated with his trauma. The examiner stated that the Veteran was irritable and had nightmares almost every night, sleep disturbance, and poor impulse control if startled. He avoids crowds and did not socialize much. The Axis I diagnosis was PTSD. The Axis V diagnosis was a GAF score of 55. The examiner indicated that PTSD did not result in total occupational and social impairment. PTSD signs and symptoms, however, did result in deficiencies in most areas, including mood, work, and family relations. The examiner stated that he would have difficulty getting along with others at work. VA progress notes, dated between 2010 and 2011, show that the Veteran was treated for psychiatric symptoms on several occasions. A December 2010 report notes increased nightmares that left him tired and irritable. The GAF score was 56. A February 2011 report shows that the Veteran stated, "Things are going pretty good. I am involved in remodel project with my son-in-law so I am keeping really busy." He also stated that his increased medication had helped with his nightmares, and that "they are much less now." The examiner noted that the Veteran was doing "pretty well," that his increased activity "seems to have made all the difference," and that he had fewer nightmares with increased Prazosin. An April 2011 report shows that the Veteran complained of nightmares a few times a week, and that he had stopped taking Prazosin because it made him feel sleepy. Reports, dated in June 2011, show that the Veteran reported that he was "doing pretty good with things," and that he stayed busy, and wanted to stop therapy. The reports note that he was taking Prazosin and Gabapentin. It was noted that his wife ordered his medications, and that she organizes the household, and his activities. On examination, he was alert and interactive and calm, and was adequately dressed and groomed. Mood was euthymic. Affect was bland. Thought process was linear. He denied anhedonia, or a death wish. Insight and judgment were superficial. The GAF score was 55. A VA PTSD examination report, dated in September 2012, shows that the Veteran reported that he lived with his wife, and that he had two (apparently grown) children. He stated that he got along well with his wife and children. He reported that he liked to work in his garden and around the house, that he had recently become interested in computers, and that he cataloged his coin collection on his computer. He was noted to be socially involved with others in his community, including going to Saturday meetings at a clubhouse. He attended meetings of a veterans' group once a month; he enjoyed the camaraderie and helped in fundraising. He drove himself to the examination on his own; he lived 100 miles away. The report notes that he has been retired for 20 years, and that he had not received psychiatric treatment in over one year. He was taking Gabapentin for sleep and pain, and took Cymbalta for depression and pain. He reported having nightly nightmares about combat, and sleeping four to five hours per night. The Veteran stated that he did not like to go to grocery stores, and that if someone bumped into him, he got agitated and wanted to hit them. He said that because of this, he went to grocery stores with his wife and kept his hands in his pockets. He denied a history of suicide attempts or psychiatric hospitalizations. The examiner indicated that the Veteran had anxiety, suspiciousness, chronic sleep impairment, irritability or outbursts of anger, hypervigilance, and an exaggerated startle response. The examiner concluded that from the standpoint of PTSD alone, there is no reason why the Veteran could not secure and maintain gainful employment in either the sedentary or physical sectors. The Veteran's PTSD was noted to have resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Axis I diagnosis was PTSD, and the Axis V diagnosis was a GAF score of 58. Reports from S.B., M.D., dated between 2011 and 2012, primarily show treatment for symptoms that are not in issue. These reports note that the Veteran has PTSD, depression, and anxiety; they contain no other relevant findings. An October 2011 report notes that the Veteran had just returned from a European cruise. In a statement, received in April 2009, the Veteran's spouse reported that the Veteran's service-connected disability had increased in severity. She indicated that he was jumpy, had flashbacks, lacked motivation, and had frequent nightmares. The Board finds that, as of April 16, 2009, the criteria for a 70 percent rating have been met. The July 2009 VA report shows that the examiner concluded that PTSD signs and symptoms resulted in deficiencies in most areas, including mood, work, and family relations. This is evidence of the criteria for a 70 percent rating. See 38 C.F.R. § 4.130. In addition, that same month, Dr. B noted that the Veteran had poor short term memory and concentration problems. She stated that the Veteran required psychological and pharmacological intervention to reduce additional memory loss, depression, and anxiety, and to learn PTSD coping skills. A GAF score of 45 was assigned. This is evidence of serious symptoms. See DSM-IV. Thereafter, the Veteran's GAF scores ranged between 42 and 58, which indicates moderate to serious symptoms. The October 2010 VA examiner concluded that the Veteran's PTSD signs and symptoms resulted in deficiencies in most areas, including mood, work, and family relations, and as previously stated, this is evidence of the criteria for a 70 percent rating. See 38 C.F.R. § 4.130. Therefore, affording the Veteran the benefit of all doubt, the evidence is at least in equipoise, and the Board finds that the criteria for a 70 percent rating have been met as of April 16, 2009. A rating in excess of 70 percent is not warranted. The findings in such areas as the Veteran's memory, judgment, insight, thought processes, speech, orientation, and hygiene, and the lack of evidence of such symptoms as suicidal ideation or homicidal ideation, delusions, or hallucinations, or other psychotic symptoms, do not warrant the conclusion that the criteria for a rating in excess of 70 percent have been met. In this regard, the evidence is insufficient to show that his symptoms are productive of gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting oneself or others, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, nor are any other PTSD symptoms shown to have resulted in such impairment. Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. Apr. 8, 2013). Notwithstanding Dr. B's two GAF scores in the 40s, all of the Veteran's GAF scores have been in the 50s. The September 2012 VA examination report shows that the examiner concluded that the Veteran's PTSD was noted to have resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation, and that this indicates that the criteria for no more than a 50 percent rating are not met. See 38 C.F.R. § 4.130. The VA progress notes show that in February 2011, the Veteran stated that things were going pretty good, that he was involved in a remodeling project with his son-in-law, and that he was keeping very busy. The Veteran also stated that his increased medication had helped with his nightmares, and that they were occurring much less. The examiner noted that the Veteran was doing "pretty well," that his increased activity "seems to have made all the difference," and that he had fewer nightmares with increased Prazosin. In June 2011, the Veteran reported that he was "doing pretty good with things," and that he stayed busy, and wanted to stop therapy. The September 2012 VA examination report shows that the Veteran was noted to be socially involved with others in his community, including going to Saturday meetings at a clubhouse, attending meetings of a veterans' group once a month. He reported that he enjoyed the camaraderie and helped in fundraising. The report states that he drove himself to the examination on his own, and that he lived 100 miles away. Dr. S.B.'s reports include an October 2011 report notes that the Veteran had just returned from a European cruise. No examiner has concluded that the Veteran's symptoms are productive of total occupational and social impairment. Accordingly, a rating in excess of 70 percent is not warranted. See 38 C.F.R. § 4.130, DC 9411. In reaching this decision, the Board has considered the Court's February 2013 decision, which determined that the Board had failed to consider Dr. B's August 2010 report, to the extent that it noted increased memory loss and that the Veteran is in need of supervision for safety. The Court stated that the Board had not considered whether this equated to evidence of being a persistent danger to himself or others, in the context of entitlement to a 100 percent rating. However, Dr. B's August 2010 report is well over two years old, and the more recent medical evidence is considered to be more probative of the Veteran's condition. See Boggs v. West, 11 Vet. App. 334, 344 (1998) (holding that the Board may adjudge a more recent medical opinion to have greater probative value, particularly where the subsequent examiner had additional evidence available in rendering the opinion). This evidence is insufficient to show severe memory loss such that he is in need of supervision for safety, or that he is a persistent danger to himself or others. This evidence includes an October 2010 VA examination report in which the examiner stated that there was no problem with activities of daily living. The GAF score was 55, and this is evidence of no more than moderate symptomatology. See QRDC DSM-IV. Similarly, in December 2010, he was afforded a GAF score of 56. In February 2011, the Veteran reported that he was involved in a remodeling project with his son-in-law, that he was "doing pretty good with things," and that he stayed busy and wanted to stop therapy. It was noted that his wife ordered his medications, and that she organizes the household, and his activities. However, the GAF score was 55. The September 2012 VA examination report notes a number of findings which are inconsistent with the conclusion that that the Veteran is in need of supervision for safety, or is a danger to himself or others. For example, the report states that the Veteran had not received psychiatric treatment in over one year. He was noted to be interested in computers, and to catalog his coin collection on his computer, and email his friends. He was also noted to be socially involved with others in his community, including going to both weekly and monthly meetings, and helping in fundraising. He drove himself to the examination on his own, although he lived 100 miles away. In October 2011, it was noted that the Veteran had just returned from a European cruise. The evidence primarily indicates that the Veteran has not had suicidal ideation, and there is no evidence of plan or intent, or a history of suicide attempts or hospitalizations for psychiatric care. The Board therefore finds that the Veteran's symptoms are not of such severity to approximate, or more nearly approximate, the criteria for a rating in excess of 70 percent under DC 9411. See 38 C.F.R. § 4.7. The Board acknowledges that the appellant has asserted that his PTSD disability has been more severe than the assigned disability rating reflects. Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). The Board has carefully considered the Veteran's contentions. In this case, however, the competent medical evidence and clinical findings comporting with the applicable rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the PTSD disability on appeal. See Massey v. Brown, 7 Vet. App. 204, 208 (1994) (generally, the Board has been directed to consider only those factors contained wholly in the rating criteria). The clinical assessments of record are considered persuasive as to the appellant's degree of impairment due to PTSD, since they consider the overall industrial impairment due to his psychiatric illness. The statements of the Veteran have also been considered together with the probative medical evidence clinically evaluating the severity of the PTSD disability symptoms. Neither the lay nor the clinical evidence provides a basis for the assignment of a rating in excess of 70 percent for PTSD, as the findings needed for the next higher evaluation are not demonstrated. As such, the Board finds that the preponderance of the evidence is against the assignment of an evaluation in excess of 70 percent. Accordingly, the claim must be denied. Consideration has been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2012); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. An evaluation in excess of 70 percent is provided for certain manifestations of the service-connected PTSD disability, but the evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability, as the criteria assess the level of occupational and social impairment attributable to the Veteran's symptoms. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. In deciding the Veteran's increased rating claim, the Board has considered the determination Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's rating should be increased for any other separate period based on the facts found during the whole appeal period, other than as noted. The evidence of record supports the conclusion that the Veteran is not entitled to increased compensation during any time within the appeal period, other than as noted. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disability on appeal such that an increased rating is warranted, other than as noted. Finally, although the Veteran has submitted evidence of medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. He has reported that he retired in 1991. The September 2012 VA examiner concluded that he was not unemployable due to his PTSD symptoms. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). To the extent that the claim has been denied, in reaching this decision, the Board considered the benefit- of-the-doubt rule; however, as the preponderance of the evidence is against the appellant's claim, such rule is not for application. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notification obligations in this case were accomplished by way of letters from the RO to the Veteran dated in May 2009, and September and December of 2012. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO has provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded three examinations. The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER For the period from April 16, 2009 to October 2, 2010, a 70 percent rating for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits. For the entire appeal period, a disability rating in excess of 70 percent for PTSD is denied. ____________________________________________ JONATHAN A. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs