Citation Nr: 1319784 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 08-34 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a higher initial evaluation for posttraumatic stress disorder (PTSD), assigned a 30 percent rating prior to January 19, 2011. 2. Entitlement to an evaluation in excess of 50 percent for PTSD, beginning January 19, 2011. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating). 4. Entitlement to an initial compensable evaluation for dermatitis of both feet. REPRESENTATION Appellant represented by: Polly Murphy, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from July 1965 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from regional office (RO) rating decisions of May 2007, which denied, inter alia, entitlement to a TDIU rating, and May 2008, which granted service connection for PTSD; the Veteran appeals the grant of a 30 percent rating. In August 2010, the appellant appeared at a videoconference hearing held before the undersigned. In a decision dated in November 2010, the Board denied the claim for entitlement to a rating in excess of 30 percent for PTSD. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a memorandum decision dated in June 2012, the Court set aside the Board's decision insofar as it addressed that issue, and remanded the matter to the Board for further adjudication. In the meantime, the Veteran filed a claim for an increased rating for PTSD in June 2011. In a February 2012 rating decision, the RO granted a higher rating of 50 percent for PTSD, effective January 19, 2011. The Veteran filed a notice of disagreement with the effective date, stating that the 50 percent rating should be effective June 6, 2005. However, because the Board's decision has now been vacated, the rating for PTSD for the entire appeal period, beginning June 6, 2005, remains before the Board. There can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant. Hamilton v. Brown, 4 Vet. App. 528 (1993) affd. Hamilton v. Brown, 39 F.3d 1574 (1994). The partial grant of an increased rating effective January 19, 2011, has been reflected in the issues as set forth on the title page. Because the rating for PTSD for the entire period since the effective date of service connection remains on appeal, the Veteran cannot simultaneously pursue a second appeal as to that issue, or any part of that issue. Therefore, the RO must take corrective action to cancel (or merge with the present appeal) the appeal of the February 24, 2012, rating decision, initiated by a purported notice of disagreement received at the RO in May 2012. The November 2010 Board decision also granted service connection for dermatitis of the left foot, and remanded the issue of service connection for dermatitis of the right foot to the RO for additional development. In a decision dated April 2011, the RO granted service connection for dermatitis of both feet, and assigned a noncompensable rating. These actions constitute a complete grant of the benefit sought in the appeal of the denial of service connection. The Veteran, however, subsequently initiated and perfected an appeal as to the noncompensable rating assigned in the April 2011 rating decision; therefore, that issue is before the Board as a new issue. All issues except the issue of entitlement to a higher initial evaluation for posttraumatic stress disorder (PTSD), assigned a 30 percent rating prior to January 19, 2011, are addressed in the REMAND portion of the decision below and are REMANDED to the RO. VA will notify the appellant if additional action is required on his part. FINDING OF FACT Prior to January 19, 2011, symptoms of PTSD result in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW Prior to January 19, 2011, the criteria for an initial evaluation in excess of 30 percent for PTSD were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). In letters dated in April 2005 and March 2006, the RO advised the claimant of the information necessary to substantiate the claim for service connection for PTSD, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). This is an initial rating issue; in such cases, the United States Court of Appeals for the Federal Circuit has held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also Sutton v. Nicholson, 20 Vet. App. 419 (2006). Nevertheless, in a letter dated in March 2006, the RO advised the claimant of information necessary to substantiate the claim. He was advised of various types of lay, medical, and employment evidence that could substantiate his claim, and of his and VA's respective obligations in obtaining such evidence. The Veteran was also advised that a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). He was also provided with information regarding effective dates. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In appealing the prior Board decision to the Court, the Veteran did not claim any prejudicial notice errors. Hence, the VCAA notice requirements have been satisfied. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159. VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). The Veteran's service treatment records have been obtained, as have VA treatment records. Private medical reports were received. A VA examination was provided in April 2007; that examination, in conjunction with the other evidence of record, describes the disability in sufficient detail for the Board to make an informed decision. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ/Decision Review Officer who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ also sought to identify any pertinent evidence not currently associated with the claim. Accordingly, the Veteran is not shown to be prejudiced on this basis. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Thus, the Board finds that all necessary notification and development have been accomplished, and therefore appellate review may proceed. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Higher Rating for PTSD-Prior to January 19, 2011 Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Although the disability must be considered in the context of the whole recorded history, including service treatment records, the present level of disability is of primary concern in determining the current rating to be assigned. Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the appeal period, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Psychiatric disabilities are evaluated under a general rating formula for mental disorders. 38 C.F.R. § 4.130. According to the general rating formula, a mental disorder is rated 30 percent when it results 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 routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Code 9411. A rating of 50 percent is assigned when it results in occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A rating of 70 percent is warranted when it results in 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when the condition results in 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. Id. The criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, the Veteran must demonstrate the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 2012-7114, Slip Op. at 9 (Fed. Cir. Apr. 8, 2013) (also explaining that VA intended the General Rating Formula to provide a regulatory framework for placing veterans on the disability spectrum based upon their objectively observable symptoms). Service personnel records show that the Veteran was deployed to Vietnam from September 1966 to July 1967. During his time in Vietnam, his occupational specialty was airframe repairman, and he was assigned to the 704th Maintenance Battalion of the 4th Infantry Division. The evidence does not show that he was in combat, but he claims that his stressor was having ordered an individual in his unit to operate equipment in a convoy; during the assignment, the individual was killed in an accident. Corroboration of the individual's death in October 1966, in a vehicle accident, was obtained. This evidence also showed that the individual was in the Veteran's unit at the time, of a lower rank, and was an aircraft maintenance apprentice, thus tending to corroborate the Veteran's assertion of supervisory authority over the deceased. The Veteran was afforded a VA PTSD examination in April 2007. At that time, he discussed his primary stressor, which involved his ordering a close friend to drive in a convoy during service in Vietnam, where he was subsequently killed. He also reported that he had served in an infantry unit, and had been shot at by the enemy. He said he was on convoys from time to time and feared being killed. He told the examiner that he experienced recurring nightmares regarding the death of his friend, recurrent distressing thoughts of war, avoidance of persons and events reminiscent of war, insomnia, increased startle response, decreased ability to concentrate, and was easily angered. He reported that he had last worked about two years earlier, delivering vending machine food. He did that for about 35 years, and said he got to the point where he just could not do it anymore because of "old age," although he also said his boss was making it too difficult for him. During the mental status evaluation, the examiner noted that the Veteran presented with average hygiene and grooming, was oriented to person, place and time, had spontaneous, coherent and relevant speech, and good long-term memory, without evidence of thought impairment, hallucinations, delusions, abnormal behavior or obsessive or ritualistic behaviors. Long and short term memory was good. There was no history of evidence of impulsive behavior. He slept from 2 to 3 hours at a time. He abstracted proverbs well. He was able to carry on his daily life in a fairly adequate manner. He was able to establish and maintain limited social relationships with family and a couple of friends. He was able to follow simple to slight moderately complex instructions. There was no history of panic attacks, although he said that he experienced occasional anxiety, and he did admit to feelings of depression. The diagnosis was PTSD, related to his military experience in Vietnam. He had some dysfunction in occupation and social situations due to the fact that he had difficulty concentrating at times and had been more distant from people. The examiner diagnosed him with PTSD, and assigned a Global Assessment of Functioning (GAF) score of 60-65 during the previous year and at the time of the examination. The symptoms were depressed mood, anxiety, and chronic sleep impairment. The claims folder also contains a report of an evaluation by Dr. D. Brady, a clinical psychologist, who examined the Veteran in August 2010 for a status review of his PTSD symptoms. He said that the Veteran's impairment level of PTSD had "progressively deteriorated," adding that he was unable to sleep, and when he did, it was only for a "few hours at a time" with nightmares. He said that the Veteran had interpersonal deficits and did not function well with other people. He was not able to hold jobs that were supervised by other people. He had anger outbursts, irritability, and was easily provoked by other people. He had become progressively avoidant. He wrote that the Veteran had attended a PTSD group at Fort Sill in the past, but found it caused him to have a progression of his symptoms. The Veteran indicated that medication helped, but did not totally alleviate all of his symptoms. He had had psychotherapy, including group psychotherapy, in the past years, but the response had been only fair. He found it difficult to drive to Lawton, as it caused him to have flashbacks to his convoy duty. In describing the Veteran's stressors, Dr. Brady reported that the Veteran had witnessed the accident in which his friend had died. He continued to have nightmares and flashbacks about being attacked, which had become significantly more morbid, and he was now sleeping 1 to 2 hours a night. He had been able to work "off and on" over the past 35 years, but had been unable to work "consistently" over the past 4 years. He had continued contact with his family, and a supportive wife. He had become significantly tired, fatigued, run down, and depressed, and had become socially avoidant. He continued to have significant symptoms of PTSD, described as thoughts and memories that will not stop. He had markedly diminished interest in or participation in significant activities, and no longer enjoyed any of his previous hobbies or outdoor activities. His feelings of detachment or estrangement continued to exist, described by the Veteran as wanting to be alone, not wanting to leave his house, and not being close to anyone. He had increased arousal, and difficulty falling asleep or staying asleep which was getting worse. He had irritability or outburst of anger. He had difficulty concentrating, and was hypervigilant. He had "physiological reactivity" to cues including military training sounds and helicopters flying at Altus Air Force Base and Fort Sill. He had markedly diminished interest or participation in significant activities. He attempted to avoid thoughts, feelings, or conversations associated with his military experience in Vietnam. He had "irritability or outbursts of anger." He was diagnosed as having PTSD, insomnia due to PTSD, and mood disorder due to PTSD. The GAF was 55. Dr. Brady concluded that the Veteran had a progressive deterioration in his PTSD pattern. For over 30 years he had "worked excessively" to avoid memories, thoughts and anxiety from his combat experiences. It was only in the past 4 years that he began to manifest internal conflicts, anger outbursts, and severely disrupted sleep. He was no longer able to work. He stated that that the best description of his current psychiatric impairment was that psychiatric symptoms caused occupational and social impairment with significant decrease in work efficiency and inability to perform occupational tasks. Dr. Brady said this was supported by the fact that he was extremely depressed and anxious, had panic attacks, chronic sleep impairment, and memory loss. In assessing the probative value to be assigned to these two examination reports, the Veteran testified at his Board hearing that the VA examination was brief. Nevertheless, the examination report contained all the necessary findings to evaluate the disability under the General Formula. Dr. Brady's opinion was less focused on specific findings, in particular, those pertaining to the criteria in the General Formula. Moreover, some of the statements are not credible. For example, he stated that the Veteran actually witnessed the injury and death of his friend in service, whereas in his June 2005 and March 2006 written statements, the Veteran indicated he had not witnessed the injury; he claimed his symptoms resulted from feelings of guilt related to his having ordered the individual to participate in the convoy, despite knowing that he was sleep-deprived. Some statements seem internally inconsistent. In one part of the report, he said the Veteran had been able to work "off and on" over the past 35 years, but later reported that for over 30 years, he had "worked excessively." In any event, the Veteran has not been employed during the appeal period, and, as noted above, it is the symptoms present during the appeal period that are of primary importance. Dr. Brady found that the Veteran had severe sleep impairment, with nightmares. However, chronic sleep impairment is contemplated by the 30 percent evaluation currently in effect. He also reported that the Veteran was extremely depressed and anxious, and had panic attacks and memory loss. He did not, however, state that panic attacks occurred more often than once a week. He did indicate that the Veteran had disturbances of motivation and mood, as well as difficulty in establishing and maintaining effective work and social relationships. He did not report a flattened affect, circumstantial, circumlocutory, or stereotyped speech, difficulty in understanding complex commands, impaired judgment, or impaired abstract thinking. He did not describe the extent of the reported memory loss; mild memory loss is a criterion for the 30 percent rating currently in effect for the period prior to January 19, 2011. Thus, Dr. Brady reported the presence of some, but less than half, of the symptoms contemplated for a 50 percent rating. 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). Hence, these evaluations of the Veteran also must be considered in the context of the other pertinent evidence of record, which includes records of the Veteran's ongoing treatment during the relevant period. VA treatment records show that in May 2005, the Veteran was evaluated by a social worker. He reported only being able to sleep 3 to 4 hours per night, and reported having dreams concerning the soldier he sent out on patrol, who died during the patrol. He said he was unemployed, and had last worked as a deliveryman in January 2005. He had received a GED. He was living with his spouse, to whom he had been married for 29 years; he described his marriage as "good." He was aware of a mental disorder but lacked insight. He reported having no leisure activities. He was fully oriented, and his thought content was coherent. His memory was good for remote, recent, and immediate recall. Insight and judgment were normal. Cognitive flexibility was somewhat rigid. He responded appropriately to questions, was cooperative in the interview, and his speech was normal. He was casually dressed and groomed. His GAF score was 60. In May 2005, he began attending PTSD group therapy sessions. These reports show that he generally interacted spontaneously with other members of the group, was alert and oriented times four, with a clear and coherent thought process, appropriate dress and grooming, a calm attitude, and no evidence of suicidal or homicidal ideation. In June 2005, he reported having financial difficulties. In August 2005, he reported keeping busy at home and spending time watching television. The following week, he participated little in the group discussion, and appeared distracted and/or withdrawn. He reported that his situation was still the same; he was still unemployed and in poor health. In his January and February 2006 group therapy sessions, he was involved in the discussion, and appeared calm, and offered and accepted ideas. Although he initially attended these sessions at least twice monthly, he eventually began attending only once per month. Beginning in 2006, his active participation in the group declined, but he usually displayed a calm attitude, and a normal presentation in the group. He was consistently on-time for the sessions, and only very rarely did he express an attitude that was flat, sad, or anxious; these reports show that he never expressed anger during any of the group therapy sessions of record. In December 2008, he was noted to be anxious. The group discussed ways of dealing with flashbacks. The Veteran said he had heard and seen helicopters that morning, which caused him to think of Vietnam, but because it was cold outside he talked himself into realizing that he was not there. In January 2010, during a PTSD group session, the Veteran appeared tense and anxious. In March 2010, although he was noted to have had a flat affect, he explained that he had just gotten over the flu, and apparently did not feel well. Nevertheless, he was noted as being attentive and identified coping skills and took action to reduce anxiety. In May 2010, the Veteran was noted as being observant and participated in the discussion. He said that he was glad to know that there were positive aspects of PTSD, such as when the group uses symptoms as a reason to learn and grow. During his final few months of group therapy, he indicated that his coping skills had improved with therapy, and said that he wanted to continue with the group therapy. During the last reported session, in August 2010, he was noted to be attentive and involved in the discussion. Dress and grooming were appropriate, and his attitude was calm. He liked the topic of positive relationships, and realized how critical they were in marriage. He felt things went better with his more laid back attitude. The Veteran also had periodic outpatient follow-up for PTSD during this period. In December 2005, he underwent a scheduled PTSD screening. He said that his symptoms had worsened since his retirement. He said that he was irritable, angry, and had intrusive thoughts and memories, guilt feelings, and nightmares. He stated that he was not sleeping well. The diagnosis was PTSD. According to a psychiatric note dated in February 2006, the Veteran had been referred for anger and insomnia. He was irritable, had a short fuse, had difficulty going to sleep and staying asleep, and had nightmares and intrusive thoughts. He tried to avoid thinking about Vietnam. When seen for follow-up on April 2006, he said he was somewhat better. He was less anxious and was sleeping a little better, and felt more rested during the day. In July 2006, he reported that he was doing well; he was not stressed and was staying busy with his hobbies. All of these entries noted the same findings: He was fully oriented. Speech was normal, mood was good, and affect was appropriate. Thought processes were logical and goal directed, and memory was grossly intact. Insight and judgment were good. The assessment was PTSD, chronic and severe, and the GAF was 55. "Severe" PTSD appears inconsistent with a GAF of 55, which, as discussed below, is in the range of "moderate" symptoms and impairment. The reported findings, however, do not support an assessment of "severe" PTSD. When seen for a mental health evaluation in September 2009, the Veteran reported nightmares related to his Vietnam experiences, social isolation, and sleep problems. The diagnosis was PTSD, and a GAF of 55 was reported. He was to attend group therapy once a month, and take prescribed medication. According to a June 2010 social work note, the Veteran complained of nightmares related to his Vietnam experiences, as well as problems staying asleep; he reported that he may sleep 4 hours on a good night. He had some irritability and anger and some social isolation. He lived with his wife of 34 years. His GAF score was noted to be 55. Occasional non-psychiatric treatment was also noted. In June 2006, he reported to his primary care provider that he had been feeling very well, remained quite active, and stated that he walked at least five or 6 miles each day. Some of the treatment notes during the appeal period contained depression screens and PTSD screens, which were sometimes positive and sometimes negative. In August 2010, the Veteran testified at a Board videoconference hearing. He said he had stopped going to group therapy because the price of gas increased, and he did not feel he could justify the 100 mile [round trip] drive. He said that on his job, one of his stops was at a hospital which had helicopters landing; he said this would upset him, but his supervisor told him to just wait in the truck until it passed. However, after that supervisor retired, a new group came in, which closely monitored the employees' time, and implemented time limits, with the threat of being fired if the time limit was missed three times. He found this to be too stressful, and so he retired from the job. On January 18, 2011, he was seen via telemedicine. He reported that he had been taking medication and had been stable on it for several years, but lately felt like his dose was too low. He reported previously attending PTSD group and found it helpful but there was no availability at present, and he felt he could not afford to drive to the Lawton Vet Center. He still did some wood working but was getting bored with it. He hadn't pursued new hobbies because he did not enjoy the company of others very much, although he attended church with his wife. Mental status examination revealed he was well-groomed, fully oriented, with fluent speech. He had a "pissed-off" mood and a blunted affect. He had 3/3 immediate memory and 0/3 recent memory. No abnormalities in thought, concentration, abstraction, insight, or judgment were noted. His current GAF score was 55. This evidence demonstrates that the Veteran's PTSD underwent some fluctuations in the level of severity during the period prior to January 19, 2011, but that the symptoms remained within the range contemplated by the 30 percent evaluation in effect during this period. The GAF score most frequently noted was 55. The GAF score is a scaled rating 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 Richards v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The higher the score, the higher the overall functioning of the individual. GAF scores ranging from 51 to 60 reflect 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). As can be seen, this range does not neatly fall within the criteria for either a 30 percent or a 50 percent rating. It is important to note, however, that the rating will be assigned 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). The Veteran has consistently exhibited most, although not all, of the symptoms contemplated for a 30 percent rating. Specifically, suspiciousness, panic attacks, and mild memory loss have been shown rarely, if ever, whereas the remainder of the listed symptoms have been regularly demonstrated. He has rarely demonstrated any symptoms characteristic of a 50 percent rating. A flattened affect was shown when the Veteran had recently been ill. No speech problems, panic attacks more than once a week, impaired judgment, or impaired abstract thinking has been demonstrated. Memory impairment was noted on Dr. Brady's report, but not with specificity, and mild memory impairment is a criterion for a 30 percent rating. Difficulty in understanding complex commands was only shown once, on the 2007 VA examination. It appears that the Veteran is socially isolated, but he has a good relationship with his wife, and during this period, when he was undergoing group therapy, his behavior and interactions were appropriate. Moreover, when evaluating the level of disability from a mental disorder, the extent of social impairment will be considered, but an evaluation will not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Although irritability and anger have been noted on several occasions, these have not been shown to be comparable to any symptoms contemplated for a 50 percent rating. Flashbacks have been rare. Furthermore, the probative value of Dr. Brady's report is not sufficient to warrant a staged increase based on his August 2010 evaluation. For one thing, he emphasized throughout the report that the symptoms were continuous and progressive; he did not report that the Veteran had a sudden increase in symptomatology. In his group therapy session just 10 days earlier, the Veteran had been particularly upbeat, which is not consistent with the level of continuous, progressive decline in function indicated by Dr. Brady. He reported positively on the group experience and indicated it had helped him on August 3, 2010, but according to Dr. Brady, on August 13, 2010, the Veteran found that the group "caused him to have a progression of his symptoms." Dr. Brady attributed his dropping out of the group to finances and "flashbacks to his convoy duty in Vietnam." However, just 3 days later, on August 16, 2010, the Veteran testified at his Board hearing that he stopped going to the group session due to the price of gas and the length of the drive (100 miles). Additionally, later VA records, in November 2011, show that the Veteran inquired as to the availability of a therapy group closer to his home, which is inconsistent with Dr. Brady's statement that he felt that the group caused a progression of symptoms. He did not mention flashbacks as a cause. While Dr. Brady speculated, in a March 2013 statement, that the group setting intimidated the Veteran from reciting his true symptoms, the dynamic of the Veteran's specific group was not known to Dr. Brady. Moreover, not just the group therapy notes, but the outpatient treatment records and the Veteran's hearing testimony, do not indicate symptomatology as described by Dr. Brady. In sum, the credible, probative evidence establishes that, for the period prior to January 19, 2011, the Veteran had PTSD with symptoms commensurate with a 30 percent rating, which contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal. Referral for extraschedular consideration is not appropriate, because the schedular criteria are explicitly based on social and industrial impairment resulting from symptoms which, if not listed, are comparable in the type and degree of the symptoms, or their effects, that would justify a particular rating. Therefore, the rating criteria are adequate, and explicitly take into consideration the degree of interference with employment, while hospitalization has not been shown; thus, extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). Accordingly, a question as to which of two evaluations to apply has not been presented, and the disability picture does not more nearly approximate the criteria required for the next higher rating. 38 C.F.R. § 4.7 (2012). The criteria for a 70 percent or 100 percent rating are also not shown or approximated. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. However, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluation in excess of 30 percent for PTSD prior to January 19, 2011, is denied. REMAND Regarding the issue of entitlement to an evaluation in excess of 50 percent for PTSD, beginning January 19, 2011, the Veteran was afforded a VA examination in April 2012, but the findings as reported on that examination report include some which are so divergent from those reported on outpatient psychiatric treatment records dated in November 2011 and January 2012, just a few months earlier, as to require clarification. Specifically, the VA examination found "impairment of short and long term memory, for example, retention of only highly learned material, forgetting to complete tasks," whereas both outpatient treatment records showed memory to be "WNL" (within normal limits). Such a significant decline in cognitive function over a short period of time requires explanation. Similarly, the April 2012 report noted "neglect of personal appearance and hygiene," while the outpatient reports reported the Veteran's appearance as "well-groomed." The April 2012 examination report also noted "impaired impulse control (such as unprovoked irritability with periods of violence)," whereas there has never previously been any intimation of violent behavior on the part of the Veteran. Unfortunately, the findings were reported in a checklist or one-word response format, and, thus, the Board is unable to weigh the probative value to be assigned to these inconsistent findings without some context. To this end, recent records must be obtained, and an additional examination obtained, which includes an explanation of all positive findings. With respect to the TDIU claim, the Veteran does not currently meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). Where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). Appropriate cases must be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration. Bowling v. Principi, 15 Vet.App. 1 (2001). Thus, if applicable once the increased rating claim has been decided, the RO must consider whether referral for extraschedular consideration is warranted. The Veteran must also be afforded a current VA examination which addresses the effect the appellant's service-connected disabilities have on his ability to work. See Friscia v. Brown, 7 Vet. App. 294, 297 (1995). Finally, concerning the claim of entitlement to an initial compensable evaluation for dermatitis of both feet, as noted above, this is a new appeal, completely separate from the issue of service connection for that condition previously before the Board. In the Veteran's substantive appeal of the higher rating issue, dated in November 2011, his representative requested a hearing held at the RO (i.e., Travel Board hearing). VA law requires that the Veterans Law Judge (VLJ) who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). Additionally, when two hearings have been held by different VLJs concerning the same issue or issues, the law also requires that the Board assign a third VLJ to decide that issue or issues because a proceeding before the Board must be assigned either to an individual VLJ "or to a panel of not less than three members of the Board." 38 U.S.C. § 7102(a) (West 2002); 38 C.F.R. § 19.3 (2012). The Court has held that under 38 C.F.R. § 20.707, a claimant must be afforded an opportunity for a hearing before all the Board members who will ultimately decide his appeal. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). In this case, the Veteran has already had a Board hearing on the issues of entitlement to a higher evaluation for PTSD, and entitlement to a TDIU rating. To avoid the delays that necessarily result from the expanded panel procedures, the Travel Board hearing requested in connection with the appeal of the issue of entitlement to an initial compensable evaluation for dermatitis of both feet should be limited to that issue, to the extent possible. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records from the Oklahoma City VAMC, to include all records from the Lawton and Altus CBOCs, dated from March 2012, to the present, including, but not limited to, all mental health clinic and psychiatric clinic records of treatment and/or evaluations. 2. Then, schedule the Veteran for an appropriate VA mental disorders examination to determine the manifestations and severity of his PTSD, to include the effects of PTSD on employability. The claims folder should be made available to the examiner. All pertinent signs and symptoms necessary for rating the disability should be reported, and a GAF score must be assigned. In view of the contradictory evidence concerning memory, memory testing sufficient to rate the disability should be conducted, if deemed appropriate by the examiner. The examiner must include an explanation of how memory was tested, and attempt to reconcile the findings with contradictory findings (Lawton psychiatry notes dated January 6, 2012, and November 3, 2011, vs. VA examination report of April 17, 2012). Other positive findings not shown in the contemporaneous treatment records should be specifically described. A complete rationale must be offered for all opinions set forth in the report. 3. Schedule the Veteran for an appropriate VA examination to determine whether the Veteran is unable to secure or follow substantially gainful employment solely as a result of service-connected disabilities, which consist of PTSD, tinnitus, bilateral hearing loss, and dermatitis of both feet. A complete rationale must be offered for all opinions set forth in the report. 4. After assuring compliance with the above development, as well as with any other notice and development action required by law, the RO should review the claims for an evaluation in excess of 50 percent for PTSD, beginning January 19, 2011, and entitlement to a TDIU rating, in light of all evidence of record. If applicable, the RO should consider whether referral for an extraschedular TDIU rating is warranted. If the decision is less than a full grant of the benefits sought, the Veteran and his representative should be provided with a supplemental statement of the case, which includes the law and regulations pertaining to a TDIU rating, and given an opportunity to respond, before the case is returned to the Board. 5. Schedule the Veteran for a Travel Board hearing concerning the issue of entitlement to an initial compensable evaluation for dermatitis of both feet. Note that a Board videoconference hearing was already held in August 2010 on the issues of entitlement to a higher rating for PTSD, and entitlement to a TDIU rating. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs