Citation Nr: 1321706 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-48 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for degenerative disc disease of the lumbar spine. 2. Entitlement to initial ratings in excess of 30 percent prior to December 6, 2011, and in excess of 50 percent thereafter, for posttraumatic stress disorder (PTSD) with depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to November 1986, and from May 1988 to April 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted service connection for PTSD with depression and assigned a 30 percent rating effective as of the November 12, 2007 date of claim for service connection, and declined to reopen the Veteran's claim for entitlement to service connection for degenerative disc disease of the lumbar spine. In a February 2012 rating decision, the RO increased the Veteran's rating for PTSD with depression to 50 percent as of December 6, 2011-the date of the most recent VA examination. In March 2012, the Veteran submitted a waiver of Agency of Original Jurisdiction (AOJ) consideration of additional evidence. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. FINDINGS OF FACT 1. The Veteran's claim for entitlement to service connection for degenerative disc disease of the lumbar spine was denied in a November 2004 rating decision, the Veteran did not appeal this denial, and the decision became final. 2. The evidence submitted since November 2004 is cumulative and fails to relate to an unestablished fact or raise a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for degenerative disc disease of the lumbar spine. 3. Throughout the appellate period, the symptoms of the Veteran's PTSD with depression resulted in anxiety; daily panic attacks, including when reminded of traumatic experiences; continuous nightmares; auditory and visual hallucinations of deceased friends and "shadow people;" flashbacks; distress; avoidance of painful thoughts, feelings, and memories; generalized social avoidance; loss of interest in previously pleasurable activities and inability to relax; sadness; impatience; disturbed sleep patterns; social isolation; poor concentration; excessive anger and irritation; guilt; diminished judgment; obsessions; continuous panic or depression; impaired impulse control; difficulty adapting to stressful circumstances; an inability to establish and maintain effective relationships; suicidal ideation; and attempted violence. CONCLUSIONS OF LAW 1. New and material evidence has not been submitted, and the Veteran's claim of entitlement to service connection for degenerative disc disease of the lumbar spine is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. Throughout the appellate period, the criteria for an initial 70 percent disability evaluation, and no higher, for PTSD with depression have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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); 38 C.F.R. § 3.159(b). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the Veteran's claim to reopen his previously denied service connection claim for degenerative disc disease of the lumbar spine, a December 2007 letter informed the Veteran of the reason his claim was previously denied, as well as the new and material evidence necessary to reopen his claim, thereby complying with the mandates of Kent v. Nicholson, 20 Vet. App. 1 (2006). The letter further informed the Veteran of the evidence he was responsible for obtaining and the evidence VA would obtain on his behalf, as well as the method by which VA determines disability ratings and effective dates. This notice was sent prior to the initial adjudication of the Veteran's claim. With respect to the issue of entitlement to initial ratings in excess of 30 percent prior to December 6, 2011, and in excess of 50 percent thereafter, for PTSD with depression, VA has met its duty to notify for this claim. Service connection for that issue was granted in an April 2009 rating decision. The Veteran is now appealing the downstream issue of the initial ratings that were assigned. Therefore, additional notice under the Veterans Claims Assistance Act of 2000 (VCAA) is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1131 (Fed. Cir. 2007), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment and service personnel records, and records of his post-service VA and private treatment. The Veteran was afforded a VA compensation and pension examination germane to his claim for higher initial ratings for PTSD with depression on appeal in March 2009 and December 2011. These examination reports are adequate because the examiners based their opinions upon consideration of the Veteran's prior medical history, described the disabilities in sufficient detail so that the Board's evaluations of the claimed disabilities would be fully informed, and supported all conclusions with analyses that the Board could consider and weigh against contrary opinions. Additionally, the VA examiners fully described the functional effects caused by the Veteran's PTSD with depression. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran was also offered an opportunity to testify at a Board hearing, but he declined. The Board acknowledges that the Veteran was not provided with a VA examination regarding his claim to reopen service connection for degenerative disc disease of the lumbar spine. However, the Board finds that such an examination and related medical opinion is not warranted, as VA's duty to provide an examination is not triggered absent the submission of new and material evidence. For the foregoing reasons, the Board concludes that VA made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. Claim to Reopen The RO most recently denied the Veteran's service connection claim for degenerative disc disease of the lumbar spine in a rating decision issued in November 2004. The Veteran did not submit any evidence relevant to this claim within one year of the issuance of this rating decision, thereby rendering inapplicable 38 C.F.R. § 3.156(b), and he did not appeal the decision. Accordingly, this denial is now final. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim if the claim were reopened, including by triggering VA's duty to obtain a VA examination. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). As reflected in the November 2004 rating decision, the RO previously denied the Veteran's service connection claim for degenerative disc disease of the lumbar spine because there is no evidence of any in-service back injury to account for degeneration of the spine, there is no evidence of treatment for a chronic back condition from the day of release from service until the present time, there is confirmatory evidence to show that the Veteran suffered numerous back injuries after service, and there is no medical evidence linking the current back condition to military service or to any event occurring therein. At the time of the November 2004 denial, the relevant evidence of record included the Veteran's service treatment records, including multiple complaints of low back pain with physical therapy in March 1986 and a profile in October 1989; multiple private treatment records dating from February 1998 through August 2002 showing lumbar spine disorders due to post-service work injuries; the Veteran's September 2003 assertion that his lumbar spine degenerative disc disease began while in military service, and an October 2004 VA examination report with a negative nexus opinion. Since the RO's denial of this service connection claim in November 2004, the relevant evidence added to the record includes VA treatment records (e.g., November 2007, October 2009, and November 2009) and private treatment records (e.g., April 2008) which continue to show ongoing back disorders, including degenerative disc disease of the lumbar spine. The evidence also includes the Veteran's July 2009 notice of disagreement and December 2009 substantive appeal, in which he references his service treatment records and 2008 private treatment records and reasserts that his back disorder resulted from service. The Board finds that the Veteran's assertion that his lumbar spine disorder is related to service is not new, because he had asserted the same in his September 2003 claim, which was before the RO at the time of the November 2004 denial. Likewise, the Veteran's references to his injuries, physical therapy, and profiles in service are not new evidence because documentation of same in his service treatment records was also before the RO at the time of the November 2004 denial. Furthermore, the Veteran's VA and private treatment records since November 2004 are not material because they do not relate to an unestablished fact necessary to substantiate the claim; specifically, they relate to the existence of a current back disorder, which the Veteran had previously established. However, they do not include evidence of any in-service back injury to account for degeneration of the spine, evidence of treatment for a chronic back condition from the day of release from service until the present time, or evidence linking the current back condition to military service or to any event occurring therein. Accordingly, the newly submitted evidence is not new and material, reasonable doubt does not apply, and the Veteran's appeal of this issue is denied. Initial Ratings in Excess of 30 percent prior to December 6, 2011, and in Excess of 50 percent thereafter, for PTSD with Depression Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified 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 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35, (1993). The record shows that the Veteran first sought service connection for his PTSD with depression on November 12, 2007. He underwent a VA examination in March 2009. The RO issued a rating decision in April 2009 that granted the Veteran's claim for service connection and assigned a 30 percent rating as of the November 12, 2007 date of claim. The Veteran filed a timely Notice of Disagreement and Substantive Appeal, then underwent a second VA examination on December 6, 2011. In a February 2012 rating decision, the RO increased the Veteran's rating to 50 percent as of December 6, 2011, the date of the second VA examination. The Veteran's PTSD has been evaluated under the General Rating Formula for Mental Disorder. 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula, a 30 percent disability rating is warranted when 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). Id. A 50 percent rating is warranted when 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; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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 symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as 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). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the U.S. Court of Appeals for Veterans Claims (Court) held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to DSM-IV. See 38 C.F.R. § 4,125(a). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). A GAF of 61 to 70 is indicative of 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. A GAF score of 51 to 60 is defined as 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). A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with an appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Following a review of the evidence of record, the Board finds that an initial rating of 70 percent for PTSD with depression is warranted throughout the appellate period. In reaching this decision, the Board has reviewed the evidence of record, to include VA treatment and examination reports, and the Veteran's statements. The Veteran contends that a higher initial rating for PTSD with depression is warranted. As an initial matter, the Board is cognizant that, in April 2012, the Veteran phrased his claim as being for an earlier effective date, and explained that he has been in treatment since October 2008. Because the Veteran is already in receipt of service connection for PTSD with depression as of November 12, 2007, the date of his claim for service connection, the Board construes his reference to an earlier effective date as a request that, at a minimum, his higher staged rating be applied as of an earlier date within the appellate period. In so doing, the Board continues to presume that the Veteran is seeking the maximum benefit allowed by law and regulation throughout the appellate period-i.e., since November 12, 2007. AB v. Brown, 6 Vet. App. 35, (1993). The Veteran states in his July 2009 notice of disagreement that he experiences a depressed mood, anxiety, and panic attacks daily. He reports going to the grocery store at 7:00 am to avoid people. He reports having continuous panic and anxiety attacks at work and in public at least 3 times per week. In his December 2009 substantive appeal, the Veteran reports experiencing continuous nightmares, as well as auditory and visual hallucinations of his friends and "shadow people." He also reports avoiding certain programs on television because they give him flashbacks and make him depressed or irritable. He reports experiencing severe anxiety around crowds, including difficulty catching his breath. In March 2009, a VA physician examiner interviewed the Veteran. The Veteran reported experiencing nightmares almost nightly; intense memories manifesting in hearing the voices of deceased friends; distress, anxiety, and panic when reminded of traumatic experiences; avoidance of painful thoughts, feelings, and memories; generalized social avoidance; loss of interest in previously pleasurable activities; sadness; depression; anger; irritability; impatience; disturbed sleep patterns; and social isolation. The VA examiner characterized the Veteran's social isolation, anger, and irritability as "extreme," and as impacting on his work functioning. The examiner assigned a GAF score of 55. In December 2011, a VA Ph.D. examiner interviewed the Veteran. The Veteran reported experiencing depression, poor concentration, excessive anger and irritation, guilt, trouble staying asleep, nightmares, anxiety attacks, panic, and an inability to relax. He reported seeing shadows throughout the day, sometimes of his deceased friend, and hearing that friend's laugh when no one is there. The Veteran stated that he lives with his wife and works full-time. The VA examiner found that the Veteran's judgment is diminished by his depression, leading to isolation. He further found that the intensity of the Veteran's PTSD is severe, with impaired social relationships, occupational functioning, judgment, mood, and range of activities. The VA examiner found that the Veteran demonstrates deficiencies in most areas of his occupational and social functioning due to PTSD because of obsessions, continuous panic or depression, impaired impulse control, difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The VA examiner further found that the Veteran is not able to work due to the effect of his PTSD on his concentration, thought organization, social comfort, and abilities to deal with conflict, frustration tolerance, and anger control, except for being forced to work to pay child support. The VA examiner assigned a GAF score of 49 for PTSD, and 55 for bipolar disorder. The Veteran has received treatment from VA on a regular basis for his PTSD with depression. He has frequently reported experiencing sleep disturbances, irritability, social isolation, and difficulty concentrating. He has occasionally reported suicidal ideation (e.g., April 2009) and attempts at violence (e.g., September 2009). He reported leaving his wife in September 2010, and reconciling with her in December 2010. VA clinicians have generally assigned GAF scores in the low-to-mid 50's, with a high of 62 in June 2011, and a low of 40 in September 2009. In March 2012, a VA psychiatrist opined in a letter that: Patient symptoms have been severe with ongoing dysfunction since I initially began seeing him in OCT 2008.... While the patient remains employed, he struggles at work with controlling aggression. Stress from his current employment does impact on his current response to treatment, and work demands do limit how frequently and [the] types of treatment he can participate in. Overall his symptoms of PTSD and Bipolar disorder are moderate to severe with significant impact of social, relational, and occupational functioning. GAF ranges from 50 to 58 depending on severity of symptoms and social and environmental stressors that impact on functioning. Based on the evidence of record described above, the Board finds that the Veteran's PTSD with depression results in occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood, due to such symptoms as suicidal ideation; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of attempted violence); difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. The Board notes that the evidence of record reflects that the Veteran has additional symptomatology which includes anxiety; daily panic attacks, including when reminded of traumatic experiences; continuous nightmares; auditory and visual hallucinations of deceased friends and "shadow people;" flashbacks; distress; avoidance of painful thoughts, feelings, and memories; generalized social avoidance; loss of interest in previously pleasurable activities and inability to relax; sadness; impatience; disturbed sleep patterns; social isolation; poor concentration; excessive anger and irritation; guilt; diminished judgment; obsessions; continuous panic or depression; suicidal ideation; and attempted violence. See Mauerhan, 16 Vet. App. 436 (2002). However, the Board finds that such symptoms do not more nearly approximate a rating in excess of 70 percent under the General Rating Formula as they are not of such a severity or frequency to result in total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; 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. While the Veteran does experience some persistent delusions or hallucinations, the Board finds that his overall symptomatology is most consistent with the 70 percent level of severity. Likewise, while the Board acknowledges that the December 2011 VA examiner found that the Veteran would not be able to work but for his need to pay child support, the Board finds that total occupational impairment is inapplicable both because of the overall symptomatology described above, and because the Veteran is working full time. Therefore, the Board finds that the Veteran's PTSD with depression more nearly approximates a rating of 70 percent. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected PTSD with depression; however, the Board finds that his symptomatology has been essentially stable throughout the appeal, as reflected in his treating VA psychiatrist's March 2012 letter. Therefore, assigning staged ratings for such disability is not warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected PTSD and depression with the established criteria found in the rating schedule. The Board finds that the Veteran's PTSD and depression symptomatology is fully addressed by the rating criteria under which such disability is rated. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Moreover, even if the rating criteria were found inadequate to describe the severity and symptoms of the Veteran's PTSD with depression, the Board further finds that this case does not present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization. Specifically, the Veteran has not reported frequent periods of hospitalization for his PTSD with depression, and any interference with his full-time employment is contemplated by his 70 percent rating. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Finally, the Court of Appeals for Veterans Claims has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied, and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board finds that the most probative evidence-including the Veteran's December 2011 VA examination report-shows that the Veteran is not unemployable due to his PTSD, as he works full-time. Thus, TDIU is not raised by the record. In summary, the Board finds that the Veteran's PTSD symptoms result in occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood, due to such symptoms as suicidal ideation; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of attempted violence); difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. Accordingly, the Board concludes that a 70 percent rating for PTSD with depression, but no more, is warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.130, Diagnostic Code 9411. ORDER A service connection claim for degenerative disc disease of the lumbar spine is not reopened. A 70 percent disability rating for PTSD with depression is granted, subject to the applicable criteria governing the payment of monetary benefits. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs