Citation Nr: 1319628 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 07-27 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to an initial disability evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) with depression. REPRESENTATION Appellant represented by: Wade R. Bosley, Attorney-at-Law ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to February 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), granting service connection for PTSD with depression and assigning a disability evaluation of 30 percent. The Veteran perfected a timely appeal with respect to the assigned rating. In May 2007, the Veteran requested a hearing before the Board; however, he withdrew that request in writing in January 2008. In September 2008, the Board denied the appeal. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2010 memorandum decision, the Court vacated the September 2008 Board decision and remanded the case to the Board for readjudication. In August 2011, the Board awarded an initial disability evaluation of 50 percent for PTSD and depression. Again, the Veteran appealed the assigned rating to the Court. In July 2012, a Joint Motion for an Order Vacating the Board Decision (Joint Motion) was brought before the Court. In an Order dated that same month, the Court vacated the August 2011 Board decision pursuant to the Joint Motion, and remanded the case for readjudication. FINDING OF FACT The Veteran's symptoms of PTSD with depression most closely approximate occupational and social impairment, with deficiencies in most areas, due to such symptoms as suicidal ideation; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with period of violence); difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for an initial disability evaluation of 70 percent for PTSD with depression are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1-4.7, 4.21, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Legal Criteria Throughout the pendency of his claim, the Veteran and his representative have repeatedly indicated that he is not seeking a rating higher than 70 percent for his service-connected PTSD, which is his right. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a Veteran is presumed to be seeking the highest possible rating unless he expressly limits the appeal to a specific rating). Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The appeal of the Veteran's claim is based on the assignment of an initial evaluation following an initial award of service connection for PTSD with depression. As such, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Id. Service connection for PTSD with depression was granted by a November 2006 rating decision and a 30 percent evaluation was assigned under 38 C.F.R. § 4.130, Diagnostic Code 9411, effective May 16, 2005. In compliance with the August 2011 Board decision, a September 2011 rating decision assigned a 50 percent evaluation, effective May 16, 2005. Under Diagnostic Code 9411, a 50 percent evaluation is warranted for mental disorders with 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 such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for 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. Id. 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). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Records dated as early as 1991 show a history of psychiatric symptoms associated with the Veteran's service in Vietnam. A clinical note dated in May 1991 reflects that the Veteran got "angry over Vietnam issues and then drinks and usually gets into fights." In March 1992, he was arrested for threatening his wife with a gun. He was diagnosed with depression in 1996, and threatened suicide in 1997, resulting in a psychiatric hospitalization. The Veteran's siblings, mother and former wife have indicated that the Veteran was a changed man after his discharge from service. They wrote specifically about episodes of unprovoked irritability, including periods of "road rage" and physical and emotional abuse of his children and wife, as well as the Veteran's inability to establish effective relationships and his need to isolate himself. Private medical treatment records dated from August 2002 to March 2005 stated that the Veteran was treated for depression. In October 2004, the Veteran's symptoms were listed as depression, loss of pleasure in his usual activities, decreased libido, anxiety, sadness, feeling worthless, withdrawal, hopelessness, and frequent anxiety attacks. The Veteran reported that he had experienced suicidal ideation in the previous month, which prompted him to see a social worker. In early November 2004, the private medical records characterized the Veteran's depression as "severe, but seems to be improving." In late November 2004, the examiner stated that the Veteran "is functioning with a mental status well enough to return to work yesterday." A March 2005 private medical report stated that the Veteran was relapsing with depression due to domestic problems which caused significant emotional stress. The report stated that the Veteran was a bus driver and this caused concentration problems and concerns with his ability to function normally at work. The examiner stated that "[w]ith this being a major problem and a history of major depression in the past, I feel it would be clinically prudent to have him off work until the situation can be resolved." On objective examination, the Veteran's judgment was normal and he was oriented to person, place, and time. His memory was normal, his affect was depressed, and his cognitive abilities were normal. A second March 2005 private medical report stated that, on objective examination, the Veteran was oriented to person, place, and time, his memory was normal, his affect was depressed, and his cognitive abilities were normal. In a March 2005 VA outpatient medical report, the Veteran reported experiencing depression. He denied current suicidal or homicidal plans, but had "vague thoughts" of suicide for several years and reported that he had previous intent to shoot himself. The Veteran was oriented to time, person, place, and objects, and denied organicity or psychoses. The Veteran had been married multiple times and was presently married to a woman with two teenage children. He described multiple difficulties with his wife and step-children and stated that he was "very unhappy." The Veteran was employed by a state transit authority, but had been on medical leave for several weeks and was not planning on returning to work until the end of the month. On mental status evaluation, there was no evidence of delusions, disorganized thinking, or hallucinations. The Veteran had a poor appetite and sleep disturbances, but had not had recent weight changes, his sex drive remained the same, and his energy level was high. The Veteran denied suicidal and homicidal thought. The Veteran stated that medication had helped alleviate his symptoms, but he was unable to continue using the medication due to work requirements. He reported that the cessation of the medication caused increases in sleep problems, a depressed and irritable mood, suicidal ideation, social withdrawal, and conflicts. He reported improvement in symptoms since being on medical leave from work and taking medication regularly. The examiner assigned a Global Assessment of Functioning (GAF) score of 40, which contemplates some impairment in reality testing or communication, such as 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, such as a depressed person avoids friends, neglects family, and is unable to work. See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM THE DSM-IV, 46-47 (1994) (DSM-IV). In a second March 2005 VA outpatient medical report, the Veteran reported that his wife was unsure about continuing the marriage. He was subdued and sad. In a third March 2005 private medical report, the examiner stated that he had received a report that the Veteran "was not ready or capable of returning to work at this time because of his mental illness." On objective examination, the Veteran was oriented to person, place, and time, his memory was normal, and his affect was "quite" depressed and sad with a discouraged outlook. His cognitive abilities were normal. In a third March 2005 VA outpatient medical report, the Veteran had a depressed mood and affect. The examiner stated that the Veteran had serious marital and parent/child problems. In a March 2005 VA telephone report, the Veteran stated that he had been granted medical leave from his job until the end of April 2005, at which time he would have to apply for disability. In a fourth March 2005 VA outpatient medical report, the Veteran had a depressed mood and affect. He reported that he had filed for a divorce. The Veteran stated that he would like to return to work and denied any suicidal ideation. In a fourth March 2005 private medical report, the examiner stated that he could tell from the Veteran's affect that his depression was improving. The Veteran was not suicidal. On objective examination, the Veteran had a normal judgment and was oriented to person, place, and time. His memory and cognitive abilities were normal. In an April 2005 VA outpatient medical report, the Veteran was depressed and reported that his divorce was final. In a second April 2005 VA outpatient medical report, the Veteran had a depressed affect. He stated that he wanted to go back to work the next month, or he would have to file for disability. In an April 2005 private medical report, the Veteran reported feeling depressed, having excessive worry, and occasional suicidal ideation. The Veteran reported that he did not feel like he was ready to return to his job. The examiner stated that the Veteran "has had episodes like this in the past and seems to recover well and become functional, but is not ready at this point." On objective examination, the Veteran had a normal judgment and was oriented to person, place, and time. His affect was depressed, but his memory and cognitive abilities were normal. In a third April 2005 VA outpatient medical report, the Veteran stated that he was not ready to go back to work. In a fourth April 2005 VA outpatient medical report, the Veteran stated that he "blew up" on several occasions and that his doctor had given him a 30 day release from work. He reported that medication was helping him sleep, but he was concerned about the effects when he returned to work. The Veteran had a slight hand tremor with a sullen mood and affect. The examiner stated that the Veteran had difficulties with attachment, commitment, sleep, depressed mood, anger, and hyperarousal. In a May 2005 VA outpatient medical report, the Veteran reported continued trouble sleeping and feeling depressed. In a second May 2005 VA outpatient medical report, the Veteran reported that he was sleeping better. He stated that he had some melancholy and sedation in the morning which dissipated. The Veteran appeared sad, but stated that he felt more like going back to work at the end of the month. He reported that he did not have social or recreational outlets. In a third May 2005 VA outpatient medical report, the Veteran stated that he had confrontations with his step-daughter. He planned on returning to work in June and wanted to reduce his medication so he wasn't sedated during the day. His mood was guarded and his affect was angry and blunted. In a May 2005 private medical report, the Veteran stated he was feeling much better. On objective examination, the Veteran had a normal judgment and was oriented to person, place, and time. His affect was appropriate, his memory was normal, he was not suicidal, and he seemed emotionally stabilized. In a fourth May 2005 VA outpatient medical report, the Veteran was upset and reported that he had had some conversations with his employer who told him that he could not return to work as the rules prohibited that for suicidal individuals. The Veteran explained this situation, reporting that prior to beginning his treatment in March 2005, he had put a gun in his mouth. He denied present suicidal ideation or gesturing. In a second May 2005 private medical report, the Veteran stated that "by federal law" he could not return to his work as a driver for one year due to admitting suicidal ideation. The examiner stated that the Veteran "seemed to be improving markedly until he was told" that he could not return to work, which resulted in feelings of inadequacy. In a June 2005 VA outpatient medical report, the Veteran was sad about his employer's decision not to let him go back to work. The examiner was "surprised since [the Veteran], in my opinion, was ready [and] able to return to work." The Veteran reported that his employer "has a policy where anyone suicidal cannot return to work for 1 year." He denied any recent or current suicidal ideation or risk, but reported that he had thought about it at some unspecified time in the past. In a second June 2005 VA outpatient medical report, the Veteran's mood and affect were depressed. He denied present suicidal or homicidal ideation. The examiner stated that the Veteran had more isolation and depression with his family moving out and was stressed due to being unable to return to work. In a third June 2005 VA outpatient medical report, the Veteran had a depressed mood and affect. He had filed an appeal with his employer's decision to not let him return to work. A July 2005 private medical report stated that over the previous few months the Veteran had experienced a severe episode of depression. "He seemed to be getting better, but now he is completely separated from his wife." The Veteran denied suicidal ideation, but stated that the previous suicidal ideation had made him unable to return to his old job. He reported that he was looking for a new job. On objective examination, the Veteran had a normal judgment and was oriented to person, place, and time. His affect was sad but not suicidal, and his memory and cognitive abilities were normal. In a July 2005 VA outpatient medical report, the Veteran's temporary disability was ending and he was filing a worker's compensation claim. He reported that he was not contesting his employer's decision to not let him drive. The Veteran reported that he had become more depressed due to his divorce and work problems. He denied suicidal and homicidal ideation, but reported drinking up to 8 beers, some nights while alone. The examiner stated that the Veteran had increased alcohol use and a depressed mood and affect. In an October 2005 statement, the Veteran's brother reported that the Veteran had mood swings, including anger, rage and depression. In a May 2006 statement, the Veteran's brother stated that the Veteran had severe mood swings and seemed to be constantly on guard. He stated that the Veteran was fighting depression on a daily basis, and that sometimes it was severe. He reported that the Veteran isolated himself and occasionally talked in a suicidal manner. The Veteran's brother stated that the Veteran had below average self-esteem and was concerned with home security. He stated that the Veteran was trying to avoid medication because he was a city bus driver. He reported that the Veteran did not have any close friends. In a May 2006 statement, the Veteran's fourth ex-wife stated that he was always angry, irritable, and had severe mood swings. He did not leave the house and had no close friends. She described serious difficulties in the Veteran's family relationships. In a May 2006 statement, the Veteran's sister stated that he had an explosive temper. She reported that since his last divorce he called her once a week, often tearfully and with regrets. She reported that the Veteran was depressed most, if not all the time, and felt helpless and useless at times. The Veteran's sister stated that he was irritable, easily startled, and had difficulty sleeping. She reported that he had no close friends other than his brother, isolated himself, had severe mood swings, and occasionally talked in a suicidal manner. In a May 2006 statement, the Veteran reported that he had no real close friends, showed no emotions, was never happy, and experienced anxiety and depression all the time. He reported that anti-depressant medication helped somewhat. The Veteran stated that he had low self-esteem, was irritable, had short-term memory impairment, and was a loner. He watched doors and windows while in restaurants and was concerned about security at home. The Veteran reported that he was occasionally easily startled by sudden, loud noises and had difficulty sleeping. He reported that he tried to not take medication due to his job as a city bus driver. The Veteran reported that he avoided talking about Vietnam and could not understand or relate to most other people. He reported previous episodes of suicidal ideation. In a June 2006 statement, the Veteran's mother stated that he was always very nervous and jumpy and had problems with relationships. She stated that the Veteran distrusted things and people, except for his brother. She reported that she lived with the Veteran and that he did not like sitting on the inside of tables at a restaurant. She stated that the Veteran's speech was very repetitive, his short term memory was bad, and he had difficulty sleeping. She stated that the Veteran stopped taking sleeping pills a few weeks before because he was a public bus driver. In an August 2006 VA PTSD examination report, the Veteran reported frequent sleep interruptions, but no nightmares. He stated that he had a very low energy, low interest in doing things, and low enjoyment. The Veteran could not think of anything he enjoyed. On a scale from 1 to 10, the Veteran estimated his average mood as a 3 to 4. He reported that he felt lethargic and did not care about things most of the time. The Veteran reported suicidal ideas in the past, but not recently, with the last suicidal feelings in February 2005. He denied experiencing homicidal thoughts. The Veteran reported a low appetite and absent sex drive, but denied a history of mania/hypomania when sober. He stated that his short term memory was getting worse and his concentration was "okay." The Veteran reported irritability, occasional angry outbursts, and avoiding crowds. He stated that he had experienced 6 to 7 panic attacks in his life, each lasting a couple minutes, with the most recent attack 4 months earlier. The Veteran denied experiencing symptoms of obsessive-compulsive disorder. He denied experiencing visual hallucinations, but occasionally thought someone had called his name when they hadn't. He reported some hypervigilance and occasional paranoid thoughts. The Veteran had been divorced four times and had two children. He reported that he spoke with his son every two weeks and with his daughter about once a month. The Veteran did not have much contact with his siblings, except for a brother he saw briefly about once a week. He stated that he had lived with his mother for the previous 5 months, got along pretty well with her, engaged in activities with her, and found living with her "tolerable." The Veteran reported he had one female friend and one male friend, both of whom he saw about once a week. He worked 8 hours per day. The Veteran reported approximately 5 previous suicide attempts in his life, but did not have any "real self harm." The Veteran had decreased pleasure and productivity in life and had a very constricted social life, however he was able to work. Relationships were a significant problem. On psychiatric examination, the Veteran appeared clean and appropriately dressed. He had mild to moderate psychomotor slowing. His speech was unremarkable, his attitude was cooperative, and his affect was somewhat constricted but mostly appropriate. The Veteran's mood was moderately depressed. No abnormalities of attention, orientation, thought process, or thought content were observed. The Veteran did not have any delusions or hallucinations. He understood the outcome of his behavior and had insight into his problem. The Veteran experienced sleep impairment and episodes of inappropriate behavior. He interpreted proverbs appropriately and did not have obsessive/ritualistic behavior. The Veteran had panic attacks, but they were "very brief" and "rare." The Veteran did not have homicidal ideation. He had suicidal ideation, but not since February 2005. The Veteran had fair impulse control with episodes of violence, but none since 2001. The Veteran was able to maintain minimum personal hygiene and did not have any problems with activities of daily living. His recent and remote memory was normal, while his immediate memory was mildly impaired. Diagnostic testing found that the degree of severity of the Veteran's PTSD symptoms was "moderate." The examiner assigned GAF scores of 70 for the Veteran's alcohol abuse and 63 for the Veteran's PTSD, both of which contemplate some mild symptoms, such as a depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, such as occasional truancy, or theft within the household, but generally functioning pretty well with some meaningful interpersonal relationships. Id. The examiner assigned a separate GAF score of 58 for the Veteran's depression, which contemplates moderate symptoms, such as flat affect, circumstantial speech, or occasional panic attacks, or moderate difficulty in social, occupational, or school functioning, such as few friends and conflicts with peers or co-workers. Id. The examiner stated that the Veteran did not have total occupational and social impairment due to PTSD, nor did his PTSD signs and symptoms result in deficiencies in judgment, thinking, family relations, work, mood, or school. The examiner stated that the Veteran did have reduced reliability and productivity due to PTSD symptoms. The Veteran was evaluated by a private psychologist, Dr. J.M., via videoconference in October 2012. The evaluation included psychological testing. The examiner summarized the relevant evidence of record, including the lay statements submitted by the Veteran's siblings, former wife, and mother, and the April 2006 VA examination. During Dr. M.'s interview with the Veteran, the Veteran expressed relief that he would not be asked directly about his combat experiences. He acknowledged that he preferred to keep his feelings to himself. The examiner noted that the Veteran's mood was depressed, with sad affect, despite being prescribed an antidepressant. The Veteran admitted to believing that he was an alcoholic. He had intrusive thoughts about combat and stated that he was considering taking an early retirement because he was having a hard time controlling his tendency towards irritable outbursts. These episodes of irritability occurred 2 to 3 times a week. The Veteran tried to block out all reminders of his trauma, but did relate that he had an increased startle reflex. While discussing the names inscribed on the Vietnam War Memorial, the Veteran had to go off-camera to compose himself. He reported decreased interest in previously enjoyable activities, and detachment and estrangement from others, stating that he would "just as soon stay in the house." He stated unequivocally that he was incapable of having loving feelings, which was "a source of extreme difficulty in his marriages." He had chronic sleep impairment, waking up several times a night, and having difficulty falling asleep. He related a recent incident in which he had become so angry that he put his arms around another man's neck. He always had a loaded gun with him and described himself as constantly aware of his surroundings. He related that his son was resentful of how the Veteran had treated him as a child, that he had "almost gone postal a few times" during his employment with the U.S. Postal Service, and that he had threatened a couple of employees. He had a history of suicidal ideation, having made suicidal gestures on several occasions. He also indicated that he would get drunk and seek out a fight, knowing that he would be beaten. He stated that he no longer had suicidal ideation, but did note that he had almost lost his job over admitting thoughts of suicide in the past. He did allude to having had fleeting thoughts of suicide in the past year, but clarified that he had no intent to carry them out. The examiner diagnosed PTSD, depression, and alcohol dependence, assigning a GAF score of 50, as a result of "social isolation, joyless existence, abiding anger." A lengthy recitation of the facts and analysis followed, reflecting the examiner's conviction that the Veteran's symptoms most closely approximated the criteria for a 70 percent disability evaluation for PTSD with depression. The examiner also filed a VA Disability Benefits Questionnaire, showing that the Veteran's symptoms were consistent with the criteria for a 70 percent disability evaluation. Taking the Veteran's overall clinical picture into account and resolving all reasonable doubt in his favor, the Board finds that he has had symptoms of PTSD and depression that impacted his social and occupational functioning such that a 70 percent rating is in order since the commencement of the appeal period. He had a need to isolate, few friends, several failed marriages, recurrent violent outbursts with allegations of fighting and physically abusing his family members, sleep impairment, difficulty in coping with his life stressors, and severe and pervasive suicidal ideation, resulting in at least two psychiatric hospitalizations. Although the clinical notes show that his symptoms were often less severe than reported on examination, the Veteran and his family members have indicated that the Veteran tends to hide his symptoms in front of others. The Veteran's symptoms do not perfectly match those listed in 38 C.F.R. § 4.130 for a 70 percent rating. However, the use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. Accordingly, after considering the totality of the evidence, the Board finds, with resolution of reasonable doubt in the Veteran's favor, that the Veteran's PTSD with depression is productive of occupational and social impairment, with deficiencies in most areas, such as work, school, and family relations. As such, a 70 percent rating is warranted. As the Veteran has limited his appeal to a 70 percent rating for the appellate period, and as a 70 percent disability has been granted, the Board need not address an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Lastly, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is raised by the record. In this case, the Veteran has been employed during most of the pendency of his claim. He has not indicated, and the record does not show, that his PTSD precludes him from obtaining substantial employment. Thus, a claim for a TDIU has not been raised. ORDER Entitlement to a 70 percent disability rating for service-connected PTSD with depression is granted. ____________________________________________ L.J. WELLS-GREEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs