Citation Nr: 1323779 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 10-16 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased disability evaluation for posttraumatic stress disorder (PTSD), to include an initial evaluation in excess of 30 percent prior to June 18, 2010, an evaluation in excess of 50 percent prior to March 28, 2013, and an evaluation in excess of 70 percent since March 28, 2013. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from April 1966 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, granting service connection for PTSD and assigning an initial disability evaluation of 30 percent. In May 2010, the Veteran withdrew his request for a Board hearing. Subsequent to the July 2010 rating decision, in which a decision review officer increased the Veteran's evaluation for PTSD to 50 percent disabling, effective June 18, 2010, the Veteran submitted a January 2011 personal statement asserting that he did not "have proof for an increase at this time." The Board finds that the Veteran was advised of the above grant of increased rating, and that his January 2011 statement was not a withdrawal of his claim on appeal. In AB v. Brown, 6 Vet. App. 35 (1993), the Court held that, on a claim for an original or increased rating, the Veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. Likewise, in a May 2013 rating decision, the Veteran's disability evaluation was increased to 70 percent, effective as of March 28, 2013. Again, this does not represent a full grant of the benefit sought on appeal, and as such, the claim remains in appellate status. The Veteran additionally alleges that he cannot work as a result of his service-connected PTSD. In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that once a claimant: (1) submits evidence of medical disability, (2) makes a claim for the highest possible rating for the disability, and (3) submits evidence of unemployability due to the disability, an informal claim is raised under 38 C.F.R. § 3.155(a) for a total disability rating based on individual unemployability (TDIU). And as the U. S. Court of Appeals for Veterans Claims (Court/CAVC) more recently explained in Rice v. Shinseki, 22 Vet. App. 447 (2009), if the Board determines the derivative TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim. Absent representation by a private attorney, remands to the RO are via the Appeals Management Center (AMC) in Washington, DC. VA's Office of General Counsel also has indicated that remanding the derivative TDIU claim does not preclude the Board from going ahead and deciding the claim for a higher rating for the disability that formed the basis of the TDIU claim. See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). The issue of entitlement to TDIU benefits is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to June 18, 2010, the Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity due to symptoms such as depression, impaired sleep, social isolation, lack of motivation, weekly panic attacks, poor impulse control and intermittent suicidal ideation; it was not manifested by symptoms severe enough to result in deficiencies in most areas of life due to symptoms as severe as near-continuous panic or depression, neglect of personal appearance and hygiene or an inability to establish and maintain effective relationships. 2. Since June 18, 2010, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas due to symptoms such as a lack of energy, episodes of violence, impaired short-term memory, suicidal thoughts and an inability to maintain minimum personal hygiene; it was not manifested by total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, an intermittent ability to perform activities of daily living, disorientation to time or place or significantly impaired memory. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an initial disability evaluation of 50 percent for service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for establishing entitlement to a disability evaluation of 70 percent, as of June 18, 2010, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2012). 3. The criteria for establishing entitlement to a disability evaluation in excess of 70 percent at any time since June 18, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Veteran's claim arises from his disagreement with the initial evaluation assigned following the grant of service connection. Courts have 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), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for these claims. As to VA's duty to assist, VA has associated with the claims folder the Veteran's service treatment records and VA treatment records, and in July 2008, June 2010 and March 2013, he was afforded formal VA examinations. A review of the Virtual VA paperless claims processing system reveals VA treatment records from as recently as April 2013 as well. VA was also notified by the Social Security Administration (SSA) in January 2013 that they did not have any records pertaining to this Veteran. The Board finds that no additional assistance is required to fulfill VA's duty to assist. 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). Additionally, the Board finds there has been substantial compliance with its December 2012 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) obtained VA treatment records from 2008 to the present and incorporated them into the Veteran's electronic claims file. The Veteran was also asked to identify any additional treatment he may have been receiving and he was scheduled for a more recent examination in March 2013. The AMC later issued a rating decision and a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2011). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2011). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in Fenderson v. West, the Court noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. 12 Vet. App. 119, 126 (1999). The General Rating Formula for Mental Disorders, including Diagnostic Code 9411, at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities. A 30 percent evaluation is provided for 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). 38 C.F.R. § 4.130. A 50 percent rating is warranted if it is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating contemplates 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. Id. A 100 percent rating contemplates 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 Global Assessment of Functioning (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) (DSM-IV)). GAF scores ranging from 41 to 50 illustrate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). GAF scores ranging from 61 to 70 reflect 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, and has some meaningful interpersonal relationships. Relevant Facts For historical purposes, the Veteran was granted service connection for PTSD in an August 2008 rating decision. A notice of disagreement was received from the Veteran in September 2009. While this notice of disagreement was not received in a timely fashion, it has been treated as timely and the Board will continue to treat it as such. In a February 2010 statement of the case, the 30 percent disability evaluation was continued. The Veteran appealed the assigned evaluation to the Board in April 2010. His disability evaluation was subsequently increased to 50 percent, effective as of June 18, 2010, in a July 2010 rating decision and to 70 percent, effective as of March 28, 2013, in a May 2013 rating decision. As such, the issue presently before the Board is entitlement to an initial disability evaluation in excess of 30 percent prior to June 18, 2010, entitlement to an evaluation in excess of 50 percent prior to March 28, 2013, and entitlement to an evaluation in excess of 70 percent since March 28, 2013. The Veteran originally filed his claim of entitlement to service connection for PTSD in September 2007. According to a March 2008 VA psychiatry consultation note, the Veteran was unemployed and having trouble sleeping because of "dreams." He was also noted to be feeling of panic and mood swings. Evaluation revealed his affect to be constricted and his mood to be depressed with low energy. He also suffered from social withdrawal with no close friends. The Veteran denied any symptoms of delusions or hallucinations. He was found to be fully oriented in all spheres with mild memory impairment. His concentration and judgment were deemed to be fair and his insight was noted to be present. The Veteran denied any homicidal ideations but did endorse a feeling of worthlessness and express the opinion that he thought he was worth more dead than alive. The Veteran was diagnosed with PTSD, depression and alcohol abuse, and a GAF score of 55 was assigned at this time. The Veteran was subsequently afforded a VA examination in July 2008. The examiner determined that the Veteran suffered from moderate to severe chronic PTSD with depression, not otherwise specified. A Global Assessment of Functioning (GAF) score of 50 was assigned. The Veteran reported having a great relationship with his father and a good relationship with two of his siblings. The Veteran also reported that he had been married for 36 years and he described this relationship as a "good friendship." He also reported a good relationship with his daughters. Otherwise, the Veteran denied having any close friends. Examination revealed the Veteran to be clean and neatly groomed. His psychomotor activity and speech were deemed unremarkable. His affect was restricted in range and intensity and his mood was anxious and depressed. His attention was intact and his memory was intact. He was found to be fully oriented to person and time, but not to place in that he thought he was on a different floor of the building. There was also evidence of intermittent suicidal ideation with no plan or current intent. There were no delusions or hallucinations identified. His judgment was deemed to be intact in that he understood the outcome of his behavior. However, his insight was diminished in that he only partially understood that he had a problem. The Veteran also reported sleep impairment. There was no evidence of inappropriate behavior or obsessive or ritualistic behavior. However, the Veteran did endorse a weekly panic attack as well as poor impulse control with episodes of violence. His violence had not resulted in him hitting anyone or causing them physical harm. Finally, the examiner concluded that the Veteran was able to maintain minimum personal hygiene and that he did not have problems performing his activities of daily living. It was noted that the Veteran had previously been employed as an owner of a dry cleaner. He was now working as a hamburger cook. The Veteran worked the overnight shift because it was more isolative. The examiner concluded that the Veteran's PTSD resulted in reduced reliability and productivity. He was unable to continue running a business due to the stress and isolative tendencies, panic attacks and depression (which was a residual of the Veteran's PTSD). However, the examiner opined that the Veteran's symptoms were not so severe as to result in total occupational and social impairment or deficiencies in areas such as judgment, thinking, family relations or work. The record also contains a VA treatment record dated August 2009. According to this record, the Veteran's depression was mild and managed with medication. He was also taking medication for PTSD and anxiety and both conditions were noted to be controlled at this time. A June 2010 VA psychology note also reflects that the Veteran was distressed and had been weeping. The Veteran reported that he was depressed and that he was fired from his part-time job two weeks earlier. Another June 2010 record reflects that the Veteran admitted to past thoughts of suicide, but he denied any current plan. An evaluation revealed him to be fully oriented with no evidence of delusional thinking. Another record reflects that while the Veteran had been sleeping well, he still had poor energy levels. He also expressed feelings of worthlessness due to his employment status, as well as poor concentration, forgetfulness and a difficulty thinking clearly. A GAF score of 50 was assigned at this time. The Veteran was afforded an additional VA examination for his PTSD in June 2010. It was noted that the Veteran previously had a suicide safety plan due to suicidal ideation. The Veteran had been married for 38 years and he had three children. It was noted that these relationships were fair. However, he felt that his wife no longer loved him. He denied being in any social groups or church and he reported having no friendships. The Veteran also reported a lack of energy for activities he used to enjoy and a history of violence, such as smacking a wall or breaking things. Examination revealed some psychomotor retardation with slow speech. The Veteran's affect was appropriate and his mood was dysphoric. He had a short-attention span with moderately impaired recent memory. His long-term memory was normal. The Veteran was oriented to person and place, but he was not fully oriented to time. His thought processes and content were normal, with no delusions or hallucinations. Judgment and insight were also intact. The Veteran was found to have sleep impairment and an inability to maintain minimum personal hygiene. He did not exhibit inappropriate behavior and his impulse control was deemed to be good with no episodes of violence due to anger and irritability. He denied homicidal thoughts but he did endorse suicidal thoughts. Finally, the examiner concluded that the Veteran did not have a problem performing his activities of daily living. The examiner confirmed that the Veteran was suffering from PTSD, as well as major depressive disorder without psychotic features. It was noted that the Veteran was currently performing seasonal employment of less than 1 year. The Veteran endorsed interpersonal problems with his supervisors and co-workers. He also reported difficulty following directions and remember long-term instructions. It was noted that he had previously owned a dry cleaning business but that he gave this up in 2007 due to an inability to remember things. He subsequently worked part-time for approximately 2 years in the hamburger industry. The examiner assigned a GAF score of 42 and determined that his PTSD resulted in deficiencies in areas such as judgment, thinking, family relations, work and mood. He did not suffer from total occupational and social impairment as a result of his service-connected psychiatric disability. A July 2010 VA psychiatry note indicates that the Veteran was sleeping better. However, it was noted that his current job was coming to an end this week and that he had no other jobs available. The Veteran was diagnosed with PTSD, depression and alcohol abuse, and a GAF score of 50 was assigned. A September 2010 note also indicates that the Veteran noted considerable improvement in his mood and that he was now finding himself interacting better and smiling easier. The Veteran's sleep was again noted to be better. However, he was anxious due to his lack of employment. It was also noted in April 2011 that while the Veteran was still unemployed, he was maintaining himself and his family and that he was able to maintain adequate function. His sleep pattern was also noted to be good, and there was an improvement in his energy level and his motivation. A GAF score of 60 was assigned at this time. According to an October 2011 VA treatment record, the Veteran reported that he was doing well on his current combination of medication. He also indicated that he was trying to get involved in community activities to keep himself busy. The Veteran was again diagnosed with PTSD at this time, as well as depression with psychosis. A GAF score of 60 was assigned at this time. In January 2012, the Veteran reported that he had felt somewhat depressed over the holidays. It was noted that the Veteran's unemployment benefits had run out and that he was still unemployed. Evaluation revealed the Veteran to be alert and his affect was deemed to be within a normal range. He was fully oriented and his memory was also intact. He again denied hallucinations or illusions, and there was no evidence of delusions or suicidal or homicidal ideation. PTSD and depression with psychosis were diagnosed and a GAF score of 60 was assigned. A January 2012 VA Vocational Rehabilitation note also reflects that the Veteran desired employment and that he visualized employment either outside or driving in some capacity. The Veteran's mental illness symptoms were noted to cycle about every six months, resulting in a "very blue feeling," a desire to be alone and anger. However, the Veteran reported that his depression was maintained with medication and that if on the job, he was able to incorporate relaxation breathing and a trip outside when possible. A January 2013 VA psychology note reflects that the Veteran reported weekly contact with his father and that he had a good relationship with his three siblings. It was also noted that the Veteran had been married for 41 years and had what he described as a "civil" relationship with her. The Veteran also described his current relationship with his three children as "good." The examining psychologist noted that the Veteran worked some odd jobs following the selling of his business in 2006 or 2007. The Veteran was of the opinion that he could not work any job at the present time. It was noted that the Veteran was continuing to experience symptoms such as high anxiety, avoidance of other people, a lack of a social life, depressed mood, a diminished interest in most activities, fatigue and loss of energy and a lack of motivation to engage in activities. The Veteran's thought processes were deemed to be linear and goal directed and his insight and judgment were found to be fair. There was no evidence of hallucinations or delusions. There were no suicidal or homicidal ideations at this time, and a GAF score of 55 was assigned. According to a subsequent January 2013 VA treatment record, the Veteran was suffering from PTSD and depression with psychosis. It was noted that there was a marked improvement with the Veteran's current medication regime and that his sleep had increased and his mood had improved. His affect was also noted to be full and his anxiety had decreased. There were no suicidal thoughts noted either. A GAF score of 60 was assigned at this time. It was noted that the Veteran was suffering from severe financial hardship and that he needed employment. A February 2013 VA psychology note reflects that while the Veteran was continuing to experience PTSD symptoms, he was currently managing his symptoms well. He was found to be fully oriented with an intact memory. His mood was neutral and his affect was congruent. His thought processes were also linear and goal-directed and there was no evidence of hallucinations or delusions. His judgment was also good and his insight was fair. A GAF score of 55 was assigned at this time. A GAF score of 60 was subsequently assigned in March 2013. The Veteran was most recently afforded a VA examination for his PTSD in March 2013. The examiner confirmed that the Veteran was suffering from PTSD and assigned a GAF score of 55. The examiner opined that this disability resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. However, it did not result in total occupational and social impairment. The Veteran's PTSD was associated with symptomatology such as depressed mood, anxiety, and suspiciousness. There was also evidence of mild memory loss and a difficulty in understanding complex commands. The Veteran also exhibited impaired judgment and impaired impulse control, such as unprovoked irritability with periods of violence. There was also evidence of disturbances of motivation and mood, difficulty in establishing and maintaining effective work and suicidal ideation. The Veteran did not exhibited disorientation to place, time or space, gross impairment in thought processes or communication, grossly inappropriate behavior, an intermittent inability to perform his activities of daily living (including maintenance of minimal personal hygiene) or persistent delusions or hallucinations. The examiner noted that the Veteran had no additional symptoms than those listed in the examination report. The examiner also indicated in an April 2013 statement that the claims file was in fact reviewed. (CONTINUED ON NEXT PAGE) Analysis The above evidence demonstrates that the Veteran is entitled to an initial disability evaluation of 50 percent for his service-connected PTSD. As already noted, a 50 percent rating is warranted when a psychiatric disability 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. According to the July 2008 VA examiner, the Veteran's PTSD was of such severity as to result in reduced reliability and productivity, due to symptomatology such as a restricted affect, intermittent suicidal ideation, diminished insight, weekly panic attacks and poor impulse control. Since the Veteran's symptomatology was deemed to be of such severity as to result in occupational and social impairment with reduced reliability, an initial disability evaluation of 50 percent is warranted. Likewise, the evidence of record demonstrates that the Veteran is entitled to an evaluation of 70 percent as of June 18, 2010. Again, a 70 percent rating contemplates 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. According to the June 2010 VA examiner, the Veteran's PTSD resulted in occupational and social impairment with deficiencies in areas such as judgment, family relations and work, due to symptomatology such as social isolation, impaired memory, suicidal thoughts and problems functioning on the job. Since the examiner concluded that these symptoms were of sufficient severity to result in deficiencies in areas such as work and family life, a higher disability evaluation of 70 percent is warranted as of June 18, 2010. However, the preponderance of the evidence of record demonstrates that the Veteran is not entitled to a disability evaluation in excess of 50 percent prior to June 18, 2010, or, an evaluation in excess of 70 percent at any time since June 18, 2010. Regarding the issue of entitlement to an evaluation in excess of 50 percent prior to June 18, 2010, the July 2008 VA examiner specifically found that the Veteran's symptomatology was not of sufficient severity as to result in total occupational and social impairment or deficiencies in most areas such as work, judgment and family relations. The Board recognizes that the Veteran did endorse symptomatology such as suicidal ideation and panic attacks prior to June 18, 2010, and that the July 2008 VA examiner concluded that the Veteran was disoriented to place. These symptoms are listed as examples of symptoms warranting a disability evaluation in excess of 50 percent. See 38 C.F.R. § 4.130. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after this phrase are not intended to constitute an exhaustive list, but rather to serve as examples of the type and degree of symptoms that may justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the Diagnostic Code and VA must consider all symptoms affecting the Veteran's level of occupational and social impairment. Therefore, while the Veteran has exhibited some of the examples listed for a 70 percent disability evaluation prior to June 18, 2010, the VA examiner of record found that these symptoms did not result in the level of occupational and social impairment envisioned for a 70 percent disability evaluation - namely, deficiencies in most areas of life, such as work, family relations and judgment. As such, the preponderance of the evidence, when viewed in its entirety, demonstrates that a disability evaluation in excess of 50 percent is not warranted at any time prior to June 18, 2010. Regarding the issue of entitlement to a disability evaluation in excess of 70 percent as of June 18, 2010, the preponderance of the evidence of record demonstrates that the Veteran's PTSD has not resulted in total occupational and social impairment at any time since this date. The Veteran has maintained a relationship with his wife and his children, and the Veteran was working in July 2010. While the Veteran is no longer working, he has still maintained social relationships. In fact, the Veteran reported that he was trying to get involved in community activities upon treatment in October 2011. The record also reflects that the Veteran was managing his symptoms well in February 2013 and the March 2013 VA examiner specifically concluded that the Veteran's PTSD did not result in total occupational and social impairment. A 100 percent rating contemplates 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. 38 C.F.R. § 4.130. Since the preponderance of the evidence of record reflects that the Veteran's PTSD has not resulted in total occupational and social impairment at any time since June 18, 2010, a 100 percent evaluation is not warranted. In reaching the above conclusions, the Board has considered the GAF scores of record. Throughout the claims period, the Veteran has been assigned varying GAF scores, ranging from the 40s to 60. GAF scores ranging from 41 to 50 illustrate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning while scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). The already assigned disability evaluations are already meant to compensate a Veteran with significant occupational and social impairment, due to symptoms such as impaired judgment, frequent panic attacks or suicidal ideation. As such, the GAF scores of record further support the schedular evaluations outlined above. The Board recognizes that the Veteran believes he is entitled to higher ratings throughout the pendency of his claim. However, he has not provided VA with any evidence or statements to demonstrate how he meets the schedular criteria for a rating in excess of 50 percent prior to June 18, 2010, or the maximum rating of 100 percent at any time since June 18, 2010. The Veteran has reported symptoms such as nightmares, impaired sleep, depression, frustration and occupational impairment. He has also described to medical examiners social isolation, suicidal thoughts, panic attacks and impaired memory. However, such symptomatology is fully considered by the currently assigned disability evaluations. As such, the Veteran's statements fail to reflect that he is entitled to a disability evaluation in excess of 50 percent prior to June 18, 2010, or, a disability evaluation in excess of 70 percent at any time since June 18, 2010. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In this regard, to accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where 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 on the basis of the criteria set forth in this paragraph an extra-schedular 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. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board is aware of the Veteran's complaints as to the effects of his service-connected PTSD on his activities of work and daily living. In the Board's opinion, all aspects of this disability are adequately encompassed in the assigned schedular ratings. In this respect, the Veteran complains of symptoms such as depression, social isolation, impaired sleep and occupational limitations. However, the now assigned ratings fully consider this impairment. In short, the Board finds that the assigned schedular evaluations are adequate. As such, there is no basis for extraschedular referral in this case. See Thun, 22 Vet. App. 111, 114-15 (2008). In conclusion, when resolving all reasonable doubt in favor of the Veteran, the Board finds that an initial disability evaluation of 50 percent is warranted for the Veteran's PTSD, and, that a disability evaluation of 70 percent is warranted as of June 18, 2010. To this extent the Veteran's claim is granted. However, the preponderance of the evidence is against the claims of entitlement to a disability evaluation in excess of 50 percent prior to June 18, 2010, and, entitlement to a disability evaluation in excess of 70 percent as of June 18, 2010. As such, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable to this aspect of the Veteran's appeal and it is denied. ORDER An initial disability evaluation of 50 percent for PTSD is granted. A disability evaluation of 70 percent for PTSD, as of June 18, 2010, is granted. A disability evaluation in excess of 70 percent since June 18, 2010, is denied. REMAND According to a January 2012 statement from the Veteran, he had been unemployed since August 2010. The Veteran also reported upon treatment in January 2013 that he was of the opinion that he could not work any job at that point in time. As already noted, when a Veteran submits evidence of unemployability in association with an increased rating claim, a claim for TDIU benefits is also inferred. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2011). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The record demonstrates that the Veteran has met the percentage requirements laid out in 38 C.F.R. § 3.340 throughout the entirety of his claim. However, it is presently unclear whether the Veteran's disabilities are of such severity as to in fact result in an inability to follow a substantially gainful occupation. Recent treatment records suggest that the Veteran has been involved with vocational rehabilitation. Furthermore, the Veteran did work (at least on a part-time basis) during the pendency of this claim. Finally, VA treatment records from 2013 reflect that the Veteran was experiencing a marked improvement in his symptoms with medication and he was currently managing these symptoms "well." As such, there is presently insufficient evidence to determine whether the Veteran's service-connected disabilities, in and of themselves, result in an inability to obtain or maintain a substantially gainful occupation. The Veteran should, therefore, be scheduled for a VA examination (or examinations) so that an opinion can be offered as to whether it is at least as likely as not that the Veteran's service-connected disabilities, taken in their entirety, render the Veteran unable to obtain or maintain a substantially gainful occupation. The Veteran is presently service-connected for PTSD, diabetes mellitus, arthritis of the first digit of the right hand, hypertension and loss of sight in the right eye secondary to hypertension. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." And the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with sufficient VCAA notice informing him of how a TDIU rating is assigned and of the types of evidence needed to support such a claim. He should also be provided the opportunity to submit or identify any additional evidence in support of a claim of unemployability. 2. The Veteran should then be scheduled for a VA examination(s) before an appropriate physician(s) to determine whether his service-connected disabilities render him unable to obtain or maintain a substantially gainful occupation. The Veteran's claims file and a copy of this remand must be provided to the examiner(s) for review in conjunction with the examination(s), and the examination report(s) should reflect review of these items. A full discussion supported by a complete rationale is required for all opinions offered. 3. The RO/AMC should then review all of the evidence of record and adjudicate the Veteran's TDIU claim. If the determination is unfavorable to the Veteran, then the RO/AMC should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs