Citation Nr: 1320356 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 10-21 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an evaluation in excess of 30 percent for the service-connected posttraumatic stress disorder (hereinafter "PTSD"), prior to May 8, 2013; and for an evaluation in excess of 50 percent thereafter. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from January 1965 to November 1968. These matters come before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a June 2009 rating decision by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Waco, Texas, which granted entitlement to service connection for PTSD, and assigned an evaluation of 30 percent, effective October 15, 2007. The Veteran appealed the initial assigned disability rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a veteran appeals the initial rating for a disability, VA must consider the propriety of a "staged" rating based on changes in the degree of severity of it since the effective date of service connection). In April 2010, the Veteran testified at a hearing before a Decision Review Officer (hereinafter "DRO"). A transcript of this proceeding is of record. In November 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (hereinafter "VLJ"). A transcript of this proceeding is of record. In March 2013, the Board remanded the claim to the RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC for further development, to include obtaining outstanding treatment records and scheduling a VA examination and medical opinion. In a subsequent May 2013 rating decision, issued June 2013, the AMC granted an increased rating for PTSD, and assigned a 50 percent evaluation, effective May 8, 2013. Because this increased rating does not represent a grant of the maximum benefit allowable under the VA Schedule for Rating Disabilities, the Veteran's claims remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal). In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the eFolder on Virtual VA (hereinafter "Virtual VA") to ensure a complete assessment of the evidence. Additional, pertinent medical evidence was added to Virtual VA in April 2013 and May 2013, which was considered most recently by the AMC in the May 2013 supplemental statement of the case (hereinafter "SSOC"). Also, a waiver of the Veteran's right to review of such evidence by the agency of original jurisdiction (hereinafter "AOJ") was submitted in June 2013. As such, the Board will proceed to consider the appeal on the merits. See 38 C.F.R. § 20.1304(c) (2012). FINDING OF FACT For the entire period of the appeal, the Veteran's PTSD has more nearly approximated occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, for the entire period of the appeal, the criteria has been met for an initial evaluation of 70 percent for PTSD. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125, 4.130, Diagnostic Code (hereinafter "Diagnostic Code" or "DC") 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code (hereinafter "38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations (hereinafter "38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (hereinafter "Federal Circuit") (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (hereinafter "Court") (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issues under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. A Veteran bears the "'evidentiary burden' to establish all elements of a claim, including the nexus requirement." Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). The Board's duty is to first determine the probative value of all pertinent medical and lay evidence of record based on its credibility and competency, and then weigh the probative value of the evidence regarding all material elements of a claim. See 38 U.S.C.A. § 7104(d); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). A "veteran is given the 'benefit of the doubt' 'regarding any issue material' to the veteran's claim 'when there is an approximate balance of positive and negative evidence.'" Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). Thus, if there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may assign greater probative to one medical opinion over by providing an adequate statement of reasons or bases for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully weigh the probative value of the lay evidence of record against the remaining evidence of record. See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). If credible, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana, 24 Vet. App. at 438; Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Moreover, lay evidence must not be categorically dismissed as incompetent evidence of medical causation merely because it is lay evidence. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Rather, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. at 433, n.4. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Jandreau, 492 F.3d 1367-77; see also Kahana, 24 Vet. App. at 438, J. Lance dissenting; Robinson v. Shinseki, 312 Fed. Appx. 336, 339 (Fed. Cir. 2009) (nonprecedential). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Duties to Notify and Assist The Veterans Claims Assistance Act (hereinafter "VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). With regard to notice regarding an initial evaluation following the grant of service connection, once service connection is granted, the claim is substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Filing a notice of disagreement (hereinafter "NOD") begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of VCAA, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of prejudice with regard to the notice in this case; hence further VCAA notice is not required with regard to the initial rating appeal. Pre- and post-adjudication VCAA letters dated in May 2008, October 2008 and April 2013, collectively explained the evidence necessary to substantiate the claim, and informed the Veteran of his and VA's respective duties for obtaining evidence. These letters also explained how a disability rating is determined for a service-connected disability and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). The claim was most recently readjudicated in the May 2013 SSOC. Accordingly, prejudicial error in the timing or content of VCAA notice has not been established and any error is not outcome determinative. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). Further, if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome by the following: (1) based on the communications sent to the Veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what is needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims. The claims file contains in-service and post-service medical treatment records, and reports of VA examinations (also known in the record as Disability Benefits Questionnaire or "DBQ") (May 2009 and May 2013). With respect to the VA examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). These VA examination reports generally reflect review of the claims file and/or clinical record, examination of the Veteran, and description and evaluation of his psychiatric disability. In particular, these examination findings are sufficient for proper application of the relevant rating criteria and adequate for the purpose of adjudication the issue decided hereinbelow. Also, the evidence of record indicates that the Veteran has been awarded Social Security Administration (hereinafter "SSA") disability benefits; however the SSA records have not been obtained. Generally, VA's duty to assist requires that all relevant records be obtained. SSA records are relevant, and VA must obtain the SSA records, if either (1) there is an SSA decision pertaining to a medical condition related to the one for which the Veteran is seeking service connection or (2) there are specific allegations "giv[ing] rise to a reasonable belief" that the SSA records may pertain to the claimed disability. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (clarifying that VA's duty to assist applies only to records relevant to a Veteran's present claim). Here, the Veteran has not identified, and the record does not indicate, that the SSA decision pertains to his PTSD or that the SSA records may otherwise relate to the disability. In fact, he has reported in his medical treatment, and has testified during his DRO and videoconference hearings, that he was awarded SSA benefits due to a lumbar spine disability. Consequently, the Board need not remand this matter in order to attempt to obtain the SSA records. See Golz, 590 F.3d. at 1323. As stated above, in March 2013, the Board remanded the case for additional development of the record, to include obtaining any outstanding treatment records and providing VA examination and medical opinion. The claims file reflects that attempts to obtain additional medical records have been made and VA treatment records have been uploaded to Virtual VA, and a VA examination and opinion have been obtained in May 2013. Further, the AOJ has had the opportunity to review the newly submitted evidence and has issued the May 2013 SSOC in consideration of that evidence. As such, the Board finds that the development directed in the prior remand has been substantially completed. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). At the November 2011 hearing, the undersigned VLJ and representative for the Veteran outlined the issue on appeal and engaged in a colloquy as to substantiation of the claim, including identifying relevant types of evidence. Overall, the hearing was legally sufficient and the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has not made the RO, the AMC or the Board aware of any additional evidence that must be obtained in order to fairly decide the claim on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of these issues have been obtained and the case is ready for appellate review. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). The Merits of the Claim As noted, in October 2007, the Veteran filed a claim for entitlement to service connection for PTSD, which was granted in the June 2009 rating decision. The Veteran filed his NOD with the June 2009 rating decision, and requested an increased initial evaluation for his PTSD. He essentially contends that he is entitled to a disability rating in excess of 30 percent for his service-connected PTSD, prior to May 8, 2013; and to a disability rating in excess of 50 percent for his service-connected PTSD, since May 8, 2013. See 38 C.F.R. § 4.130 (2012). After a full review of the record, the Board finds the Veteran's PTSD more nearly approximates the criteria for a 70 percent evaluation for the entire period of the appeal. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of the course of his disability over time. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder. In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate ratings can be assigned for separate periods of time based on the facts found-"staged" ratings. See Fenderson, supra, at 125-26. The Board has considered whether additional "staged" ratings are appropriate for the psychiatric disability. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The record does not support assigning different percentage ratings for the service-connected PTSD. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Ratings shall be based, as far as practicable, upon the average impairments of earning capacity. However, as here, from time to time, VA will readjust this schedule of ratings in accordance with experience. To accord justice in an exceptional case in which the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Secretary, acting within his authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under-or over-inclusive. The Secretary's 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. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (1992). The Board observes that the Veteran has been diagnosed with several psychiatric disorders, to include PTSD; dysthymic disorder; major depressive disorder; depression and anxiety that is medically considered a secondary manifestation of the PTSD; and alcohol abuse in sustained full remission. Given the ambiguities in the record and bearing in mind the benefit of the doubt, the Board will deem all psychiatric symptomatology and impairment to be attributable to the service-connected PTSD. See generally Mittleider v. West, 11 Vet. App. 181 (1998). For ease of reference, the Board will evaluate this claim under the criteria of 38 C.F.R. § 4.130, DC 9411. The General Rating Formula provides a 30 percent (hereinafter "%") evaluation is warranted where there is 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, mild memory loss (such as forgetting names, directions, recent events). A 50% evaluation is warranted where there is 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 or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70% 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 work like setting); inability to establish and maintain effective relationships. A 100% evaluation is indicated where 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 for names of close relatives, own occupation, or own name. Id. 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. In assessing the evidence of record, it is important to note that a Global Assessment of Functioning (hereinafter "GAF") score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (hereinafter "DSM-IV") at 32). A score of 31 to 40 is assigned where there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). Id. A score of 41-50 is assigned where there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. A score of 51-60 is assigned where there are 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, conflict with peers or co-workers). Id. A score of 61-70 is indicated where there are some mild symptoms (e.g., depressed mood and mild insomnia OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id. During the Veteran's DRO and videoconference hearings, he testified that his PTSD was productive of symptoms of severe panic attacks occurring at a rate of 4 per week; increased irritability; suicidal ideation; impaired concentration, memory and attention; paranoia; exaggerated startle response; and isolating behavior. However, he denied undergoing inpatient treatment for his PTSD. He also submitted written statements in which he reported that he was socially isolated; was unable to develop and maintain personal relationships; experienced daily, severe panic attacks; suffered from debilitating anxiety, depression and paranoia; and had a spotty employment history. In September 2007, the Veteran underwent an initial evaluation with a VA psychiatrist, during which he complained of depression, anxiety and alcohol dependence. He denied any suicidal ideation, but estimated that his last suicidal ideation occurred about 2 months ago, without plan or intent. The Veteran also denied any homicidal ideation, but admitted to chronic problems with sleep. He described symptoms of avoidance, anxiety, hypervigilance and self-isolation. He also noted that he had a gun for protection, but denied any significant problems with anger. It was noted that the Veteran had a Bachelor's degree in economics and political science. He denied ever being married, and explained that his longest relationship was about 2 years. He reported that he did not like to sleep in the same room with someone else. The Veteran gave an employment history of working in sales, and primarily in construction sales, selling housing materials such as roofing materials and house siding, and that he last worked in 2006. He indicated that he helped to raise his 2 nephews. The Veteran reported that he used to enjoy golfing and enjoyed reading, and had a black belt in karate. On mental status evaluation, the Veteran was described as alert, casually dressed, well groomed, and age appropriate. He exhibited infrequent eye contact, and speech was regular in rate, rhythm, and volume. Also, thought processes were generally logical and goal-directed. The Veteran denied any suicidal or homicidal ideation, and no psychotic symptoms were observed. His mood was described as depressed and anxious, and his affect was somewhat restricted. Memory and concentration were observed to have no deficits, and insight and judgment appeared to be fairly good. The Veteran was diagnosed with PTSD, dysthymic disorder, and alcohol dependence, and a GAF score of 50 was assigned. A VA psychiatry note, dated in June 2008, shows the Veteran was treated for depression, with vague suicidal ideation, without plan or intent, and without homicidal ideation. He reported sleeping about 3 to 4 hours per night, and for approximately 2 nights per week, did not sleep at all. He noted that he was upset that his nephew would not allow him to see his nephew's 3 children, and wondered if his nephew had been concerned with the Veteran's alcohol abuse problem. The Veteran was observed to be alert; well-groomed; casually dressed; with intermittent eye contact; with speech with regular rate and rhythm; with affect somewhat depressed; and with logical thought process. The Veteran was diagnosed with PTSD, dysthymic disorder, and alcohol dependence in early full remission. He was assigned a GAF score of 48. In May 2009, the Veteran underwent a VA PTSD examination, during which he reported an employment history of being unable to work in office settings due to anxiety symptoms and abrasive behavior toward others; however, he was able to manage working independently without coworkers in sales. He denied ever having been married, which he attributed to his PTSD-related sleep problems such as discomfort sleeping in a room with another person and tendency to attack his sleep partners. In fact, he reported that he had tried cohabitation with females on multiple occasions but he almost killed multiple partners due to reexperiencing/flashbacks of combat trauma events at night and drawing his weapon toward his sleep partners. The Veteran described having minimal close friendships, and minimal relationships with family members, but considered his minimal social network to be extremely supportive. In this regard, he lived with his brother and sister-in-law and had a good relationship with them. The Veteran reported hobbies of watching television and reading, and preferred solitary activities due to apprehension, hypervigilance, and mistrust of others. He admitted to a history of going to bars with intent to engage in fistfights with other patrons immediately following his military discharge, and of unintentionally assaulting sleep partners. However, he denied any recent assaults or violence, and denied experiencing homicidal ideation, or any suicide attempts. The Veteran primarily described symptoms of persistent apprehension about possible danger in his surroundings while in public; hypervigilant behaviors such as closely watching the movements of others; and becoming easily startled by loud noises or the sudden actions of others. He indicated that he reexperienced his traumatic combat situations by having intrusive thoughts and images of the events, and reported frequent nightmares, flashbacks, and anxiety, especially after exposure to cues that resemble the trauma. The examiner noted that the Veteran's occupational functioning appeared to have been impaired throughout his adult life due to symptoms consistent with PTSD, such as chronic anger, hostility, and mistrust toward coworkers. It was noted that he was disabled due to a back injury in 2006. He reported a great deal of financial stress, and admitted to vague suicidal thoughts over the previous year such as wondering why his was still alive and wondering if he would be better off dead, but he denied any specific suicidal intent or plan. He also denied symptoms of hopelessness or helplessness, but did experience recurrent low mood and recurrent vegetative symptoms of depression. The examiner noted that several depressive symptoms overlapped with the Veteran's more florid PTSD, such as sleep difficulties, poor concentration, guilt, shame, social withdrawal, and decrease in activities of interest. However, he was not considered to be an imminent risk of suicide or homicide. On mental status evaluation, the examiner observed no impairment of thought process or communication; no delusions or hallucinations; and no significant impairment in communication. He reported vague and intermittent suicidal ideation for 1 year, but denied any specific intent or plan for suicide, and denied any current suicidal ideation. His ability to maintain minimal personal hygiene/other basic activities of daily living was characterized as intact, he was oriented to person place and time, and he had no memory loss or impairment, and denied experiencing obsessive or ritualistic behavior that interfered with routine activities. The examiner noted the Veteran's rate and flow of speech was within normal limits, and his mood was euthymic, although he reported frequent low mood. The examiner indicated no significant impaired impulse control was noted on examination. The Veteran was diagnosed with chronic PTSD, and with recurrent, moderate major depressive disorder. He was assigned a GAF score of 58 for his PTSD, and a GAF score of 66 for his major depressive disorder. A VA psychology note, dated in August 2009, indicates the Veteran was treated for symptoms of PTSD, including irritability and isolating himself from others. It was noted that he had GAF scores that were consistently in the mid-40's as a result of serious symptoms. A statement from the Veteran's VA group therapist, also dated in August 2009, indicates the Veteran underwent group PTSD treatment in 2009, and attended an alcohol and drug dependency program. The therapist noted that the Veteran's relationship with his nephew, whom he raised, was strained due to symptoms of PTSD. The therapist also noted that the Veteran avoided crowds; drank in order to self-medicate; avoided distressing memories; had panic attacks; had sleep difficulty with nightmares; and had anger. His mood was described as depressed on initial evaluation, with some improvement over time. The therapist noted that the Veteran acknowledged suicidal ideation "every day," although he denied intent or plan. Generally, private treatment records from the Veteran's private physician, "Dr. Rogers," dated in February 2010 and May 2010, it was noted that the Veteran's previous employment included holding multiple jobs, over 20, over the course of 40 years, which the Veteran was only able to keep when he worked unsupervised and had no supervisory responsibility over others. His symptoms were described as "persistent" and included difficulties falling and staying asleep; irritability and outbursts of anger; difficulty concentrating; hypervigilance; and exaggerated startle responses. His effect was described as "flattened," and it was noted that he had panic attacks at a rate of more than once per week. The Veteran also was found to experience difficulty in understanding complex commands, which manifested in his inability to finish school or consistently hold jobs. Dr. Rogers noted that the Veteran had impairment of short and long term memory, impaired judgment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. Dr. Rogers observed that the Veteran's life had been one of "utter social and occupational chaos," noting that the Veteran had never married and had no children. Also, his longest held job was in sales of home improvement products which was set up in such a way as to limit his contact with potential customers and eliminate a direct chain of supervisors with whom to deal. Dr. Rogers noted that the Veteran was consistently unable to control his anger due directly to his psychiatric condition, and either had to give up jobs or was removed from them when his duties involved interacting with people. Dr. Rogers described the Veteran's attention, concentration and immediate recall as impaired but functional. He was also described as pessimistic, depressed and paranoid. Dr. Rogers noted that the Veteran denied homicidal and suicidal ideation, but had reported experiencing both in the past, which was directly related to the amount of stress he had been experiencing. The Veteran was assigned GAF scores ranging from 40 to 45 at that time. Notably, during the April 2010 DRO hearing, Dr. Rogers testified that the Veteran's alcohol dependency was a means of self-medicating due to his PTSD. Dr. Rogers noted that the Veteran's reliability had diminished, as had his ability to recall dates and times, due to difficulty with concentration and attention, and anxiety. Dr. Rogers indicated the Veteran experienced daily panic attacks, with incapacitating attacks lasting at least one week. Dr. Rogers noted that although the Veteran had not demonstrated suicide attempt, he had verbalized intent and general ideation, as well as homicidal ideation. Dr. Rogers observed that the Veteran tended to self-isolate, although he did occasionally attend some church services, and his ability to cope with other people had marginally improved due to treatment with a PTSD group. Dr. Rogers opined that the Veteran's GAF score for the day of the hearing was a 45. Most recently, in May 2013, the Veteran underwent a VA PTSD examination, during which he was diagnosed with PTSD; depression and anxiety that was medically considered a secondary manifestation of the PTSD; and alcohol abuse in sustained full remission. He was assigned a GAF score of 55. The examiner observed the Veteran's orientation to person, place, situation and date was intact. The Veteran's memory loss or impairment compared to age peers was fair, and intellectual functioning was estimated to be average. His mood was described as "normal, depressed," and his affect was described as appropriate to the content of the discussion in both intensity and direction. Thought processes were noted to be clear, logical, linear, coherent and goal-directed, and the Veteran made appropriate eye contact and was cooperative. The examiner observed that the Veteran experienced difficulty concentrating, but denied obsessive or ritualistic behavior that interfered with routine activities. The Veteran described panic attacks occurring at a rate of 1 to 2 times per week, which were "not as bad as [they] used to be." Nothing significant was noted regarding impaired impulse control, and depression was rated as a 5 or 6 on a scale of 0 to 10. The Veteran indicated that his anxiety levels varied dramatically from day to day, and denied delusions, hallucinations and there persistence, suicide attempts, homicidal ideation and sleep impairment that interfered with daily activities. The examiner characterized the Veteran's occupational and social impairment as that with "reduced reliability and productivity." The Veteran described his current symptomatology as being unwilling to go into crowds due to anxiety attacks and problems sleeping. He indicated that he was unmarried because "no one wanted to sleep next to a gun." He reported that he was estranged from his family for years, and that now he felt confined to close family members and his PTSD group, but never felt comfortable in church after returning from his military service because of all the people who were present there. The Veteran indicated that he had reduced his participation in any activities away from his small geographic area as he wanted to avoid crowds. He noted that he continued to be unemployed since 2006, and denied doing any volunteer work. The examiner concluded that, based on direct examination of the Veteran, review of private and VA medical records, and the claims file, the Veteran's PTSD symptoms were stable with remission of alcohol intake. The examiner noted the Veteran had developed a coping strategy for avoiding most activities that would bring him into situations with large groups of people or unknown individuals. The examiner again noted that the Veteran had not worked for a number of years due to a back injury, but that when he had worked, he was mostly autonomous from supervisors and co-workers, with limited contact with customers, which he described as relatively pleasant due to those limitations. The Veteran indicated that he had a tendency to withdraw when more depressed. The examiner opined that, separate from any physical disability or health concern, the Veteran's PTSD did not render him unemployable given the availability of an environment similar to his previous job. The Board observes that for the entire period of the appeal, the assigned GAF scores, ranging from 40 to 60, with the majority of scores in the 40's, generally represent serious symptoms, or any serious impairment in social, occupational or school functioning. While not determinative, a GAF score is highly probative as it relates directly to the veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). As to social and occupational functioning, the Veteran had consistently been shown to have experienced irritability and aggressive behavior, as well as depressed mood, daily panic attacks, and occasional suicidal and homicidal ideation, which impacted his work when he was employed. He has also consistently been shown to have experienced poor memory and poor concentration. It is apparent from the record that the Veteran's home life had been impacted by his psychiatric disability. The Veteran did not marry, has been estranged from his family, self-isolates, and has almost no outside activities. He has also reported that he was unable to share a bed with a partner because of his sleep patterns and nightmares due to his PTSD. The Board finds the Veteran's statements regarding the severity of his symptoms to be highly credible, as they are internally consistent and are supported by the competent and credible clinical record. Meanwhile, as to symptoms that are directly contemplated under DC 9411, the clinical record and the hearing testimony indicate that the Veteran has had occasional suicidal and homicidal ideation; near-continuous panic affecting his ability to function independently, appropriately and effectively; impaired impulse control; inability to establish and maintain effective relationships; and difficulty in adapting to stressful circumstances. Though not every one of the symptoms denoted under DC 9411 for assignment of a 70 percent rating were presented, when resolving reasonable doubt in the Veteran's favor, there was sufficient indication of qualifying impairment that the criteria for a 70 percent schedular rating were effectively met for the entire period of the appeal. See 38 C.F.R. § 4.3. However, the Board does not find that the Veteran's symptomatology denotes total occupational and social impairment. In this regard, the Veteran has not demonstrated more severe symptoms such as active suicidal and homicidal ideation, or persistent delusions or hallucinations. He has not been shown to have gross impairment in thought processes, memory, behavior or communication, as the record clearly illustrates he was always oriented to person, time and place, and was able to communicate effectively during his treatment. However, treatment records from this period reflected symptoms of unprovoked irritability, impaired impulse control, difficulty adapting to stressful circumstances, mild cognitive impairment and short-term memory impairment, which are more appropriately representative of the criteria for a 70 percent rating than that of a finding of total impairment. Having closely reviewed the record, and mindful of applying VA's doctrine of resolving reasonable doubt in favor of the claimant, the Board will award an evaluation of 70 percent for the Veteran's service-connected PTSD. As the symptomatology in question had existed since the Veteran's initial onset of PTSD, the Board will therefore assign a 70 percent evaluation, and no more, for the entire period of the appeal. In reaching this determination, the Board is cognizant of the fact that the Veteran has continuously demonstrated psychiatric signs and symptoms best approximated by a finding of occupational and social impairment with deficiencies in most areas. See 38 C.F.R. § 4.130, DC 9411. Extraschedular Considerations Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Schedular ratings are based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. 38 C.F.R. § 4.15. To afford justice in exceptional situations, however, an extraschedular rating may also be assignable. 38 C.F.R. § 3.321(b). The Board may not, in the first instance, assign an increased rating on an extraschedular basis, but may determine whether referral for extraschedular consideration is warranted, provided that it articulates the reasons or bases for that determination. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). This determination follows a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, the level of severity and symptomatology of a veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe a veteran's disability level and symptomatology, the disability picture is contemplated by the rating schedule. Therefore, the assigned schedular evaluation is adequate and no referral is required. Id. If the schedular evaluation does not contemplate the level of disability and symptomatology, and is found inadequate, the second step of the inquiry requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-16. The first two steps should be undertaken by comparing the disability picture of each service-connected disability with the criteria in the rating schedule for that disability. The Board should compare the service-connected disability picture with the criteria in the rating schedule for that disability. Johnson v. Shinseki, --- Vet. App. ----, 2013 WL 1224810, Vet. App., March 27, 2013 (NO. 10-1785). Extraschedular consideration is undertaken on the basis of each individual service-connected disability. Based on this disability-by-disability approach, the Board is not required to consider whether a veteran is entitled to referral for extraschedular consideration of his service-connected disabilities on a collective basis. Id. If analysis of the first two steps shows that the rating schedule is inadequate to evaluate the disability picture and that picture shows the related factors discussed above, the final step requires that the disability be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. 111. Here, the rating criteria reasonably describe the Veteran's PTSD levels and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. It is noted that the symptoms listed in the rating criteria are demonstrative and not exhaustive; thus, the rating criteria actually consider many other psychiatric symptoms. See Mauerhan, 16 Vet. App. 436; see also 38 C.F.R. § 4.130. Overall, the occupational and social impairment caused by the Veteran's PTSD, as described above, are accounted for by the rating criteria. Thus, the assigned schedular evaluation is adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. Additionally, entitlement to a total disability rating based on individual unemployability (hereinafter "TDIU"), is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). While the record shows the Veteran is currently unemployed, and he has, at times, contended that his service-connected PTSD prohibits him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him, the Board finds that the evidence of record does not support this contention. In this regard, in November 2005, the Veteran submitted a statement indicating that he was unemployed after being in the construction industry for 30 years in sales. The Veteran indicated that he could no longer climb ladders to lug heavy samples around because he experienced neuropathy that made getting on roofs a hazard. The clinical record also shows that he had repeatedly attributed his unemployability to a back disability. While the Board notes that the May 2009 VA examiner observed that the Veteran reported an employment history of being unable to work in office settings due to anxiety symptoms and abrasive behavior toward others, he was found to be able to manage working independently without coworkers in sales. Though the examiner noted that the Veteran's occupational functioning appeared to have been impaired throughout his adult life due to symptoms consistent with PTSD, such as chronic anger, hostility, and mistrust toward coworkers, the examiner did not indicate that the Veteran's PTSD precluded him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. Also, the May 2013 VA examiner opined that, separate from any physical disability or health concern, the Veteran's PTSD did not render him unemployable given the availability of an environment similar to his previous job. As noted, the Veteran has a degree in higher education, and has, himself, reported that he was able to get along with others in an employment setting if his interpersonal interactions were limited. Therefore, any development or consideration under Rice is not appropriate. ORDER An evaluation of 70 percent, and no more, is granted for PTSD, for the entire period of the appeal, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs