Citation Nr: 1323802 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-08 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (hereinafter "PTSD") prior to April 15, 2013, and to an evaluation in excess of 70 percent thereafter. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (hereinafter "TDIU"). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1968. He was awarded two Purple Heart Medals and the Vietnam Campaign Medal among other decorations for his combat service in the Republic of Vietnam (hereinafter "Vietnam"). This matter initially came before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a July 2008 rating determination of the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in St. Louis, Missouri, which continued a previous 30 percent disability rating for PTSD. The Board had previously considered the claim in a June 2012 decision, wherein it granted a 50 percent rating for PTSD, effective March 2007. The claim was thereafter the subject of an October 2012 Joint Motion for Partial Remand (hereinafter "JMPR") and Order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court"), for consideration of the applicability of the holding in Mauerhan v. Principi, 16 Vet.App. 436, 442 (2002). In Mauerhan, the Court held that 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, 16 Vet. App. 436 (1992). The Board remanded the case in February 2013 to the RO via the Appeals Management Center (hereinafter "AMC") in Washington, D.C. for further development, to include obtaining outstanding VA treatment records, and scheduling a VA examination and medical opinion. In a May 2013 rating determination, issued in June 2013, the AMC granted a 70 percent rating for the Veteran's PTSD, effective April 15, 2013, the date of a VA examination report showing increased disability. Because this increased rating does not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran's claim remains 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). The claim now returns for appellate review. 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 lay and medical evidence was added to Virtual VA in March 2013 and June 2013, which was considered by the AMC in the May 2013 rating determination. Also, in June 2013, the Veteran's representative submitted a waiver of the Veteran's right to have his case remanded to the Agency of Original Jurisdiction (hereinafter "AOJ") for initial consideration. As such, the Board will proceed to consider the appeal on the merits. See 38 C.F.R. § 20.1304(c) (2012). To the extent indicated hereinbelow, the issue of entitlement to a TDIU has been reasonably raised by the record, and is presently in appellate status before the Board as a component of the increased rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Hence, this claim has been listed on the title page, and is REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter on appeal have been accomplished. 2. 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 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 CONCLUSIONS 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). Duties to Notify and Assist The 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 claim; (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). In a freestanding claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VCAA letters dated in April 2008, October 2008 and March 2013, collectively explained the evidence necessary to substantiate the claim for an increased rating for the PTSD, and informed the Veteran of his and VA's respective duties for obtaining evidence. Also, the October 2008 VCAA letter advised the Veteran of the type of evidence needed to substantiate the claim for an increased rating, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned, in compliance with Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The April 2008 and October 2008 letters explained how a disability rating is determined for a service-connected disorder 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). As noted, the claim was readjudicated in the May 2013 rating determination. 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/Simmons, 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 post-service medical treatment records and reports of VA examinations (May 2008 and April 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). The VA examination reports generally reflect review of the claims file, examination of the Veteran, and description and evaluation of his disability in accordance with the criteria for rating psychiatric disabilities. In particular, these examination findings are sufficient for proper application of the relevant rating criteria and are adequate for the purpose of adjudication of the psychiatric disability. The Board notes that VA treatment records indicate that the Veteran has received private treatment for his PTSD from "Dr. Corvalan." However, the Veteran has made no attempt to contact VA and request that records be obtained from Dr. Corvalan, nor has he completed a VA Form 21-4142, Authorization and Consent to Release of Information to the Department of Veterans Affairs, so that VA may obtain information from Dr. Corvalan. The Board notes that "[t]he duty to assist is not always a one-way street. If a [V]eteran wishes help, he cannot passively wait for it . . . ." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, no further development of the record is required in this regard. 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 the issue has 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). Entitlement to Increased Ratings In March 2008, the Veteran filed a claim for an increased disability rating for PTSD. He essentially contends that he is entitled to a disability rating in excess of 50 percent for his service-connected PTSD, prior to April 15, 2013, the date of a VA examination report showing increased disability, and to a disability rating in excess of 70 percent thereafter. See 38 C.F.R. § 4.130 (2012). The Board must analyze the evidence from the earliest possible date upon which such increase could be awarded, namely, one year prior to the RO's receipt of his March 25, 2008, increased rating claim. See 38 C.F.R. § 3.400(o)(2); accord Hart v. Mansfield, 21 Vet. App. at 509-10 (2007). 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. In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as in this case, 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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, 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 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. In April 2008, the Veteran's friend and former service member, whom he had not spoken to in 40 years, provided a statement that it was not surprising that the Veteran was suffering from PTSD given the nature of his combat service. The former service member noted that, at the time of service, the Veteran was not the same person before going off to war as he was when he returned from service. Also in April 2008, the Veteran's spouse submitted a statement of her observations of the changes in the Veteran's mental status and behavior from before he was deployed to Vietnam and after he returned from Vietnam. She noted that before he went to Vietnam he was happy and kind, and was not nervous or impatient. She indicated that the Veteran's current behavior was unpredictable, moody, unkind, disloyal, constantly on edge, impatient, irritable and stressed. She also reported that "something as trivial as driving to the store [could] become an ordeal when watching how he react[ed] to other drivers." VA psychology notes, dated from 2008 to 2012, reflect that the Veteran was consistently observed to have good appetite and fair sleep, but had abnormal mood and affect related to a number of family and health issues. His symptoms generally included recurrent and intrusive recollections of trauma, dissociative flashbacks of traumatic events, hyper-arousal, sleep disturbance, nightmares, anxious mood, restricted affect, guilt, increased irritability and agitation, isolation behavior and estranged relationships with a number of friends and family members. He denied experiencing hallucinations, delusions, suicidal ideation and homicidal ideation, and his concentration was consistently characterized as "good." However, he described episodes of feeling terrorized by Medevac helicopters flying near his home, which caused him to feel panic and flee inside his home to the basement for comfort. The Veteran was consistently found to be alert and oriented, and GAF scores assigned ranged from 55 to 65. These records reflect a waxing and waning of the Veteran's anxiety and irritability symptoms over this period of time, and, more recently, indicate an upward trend in the severity of these symptoms. The VA psychology notes also show that, starting in March 2008, the primary focus of the Veteran's therapy included treating the theme of breaking off relationships with those whom have hurt/offended him, including an estranged son, his long-term psychiatrist, military buddies whom he served with in Vietnam, and with a corpsman who had treated his wounds. Additionally, although the Veteran generally has characterized his relationship with his wife as good, these records reveal her reporting that he was constantly irritated with her and that, at times, their relationship was strained as a result. In May 2008, the Veteran underwent a VA examination, during which he identified his chief complaint as experiencing sleep difficulties, nightmares and flashbacks. He had experienced increased irritability, nightmares more frequently, intense and active flashbacks, and intrusive thoughts were present at a greater rate. The Veteran gave a social history of having been married since 1968, and having four grown children. He reported that he and his wife got along "pretty good," although he admitted to "not having a lot of patience with [his] wife." He indicated that his wife told him this had gotten worse in the previous year. The Veteran also reported his relationship with one of his sons is estranged, as his son stopped speaking to him and his wife three years ago. The Veteran reported an employment history of retiring from the post office in 2003 after 30 years of employment. In addition, for the 15 years prior to his retirement he worked a second job at "Rodeway Truck Lines" loading trucks. He indicated that because of the second job he worked seven days a week and was not home very much. He denied ever having been fired. He also denied any history of or current alcohol or illegal drug use, and any legal history. Regarding the Veteran's symptoms related to PTSD, he reported nightmares approximately two times each week; intrusive memories; flashbacks occurring every few months; avoidance of thinking or talking about the war; and avoidance of activities such as being in the woods, watching war movies and news out of Iraq. While the Veteran indicated that he felt close to his family, he reported that he felt detached and estranged from persons he served with. He also described feelings of emotional numbness and characterized himself as "cold." The Veteran noted increased concentration difficulties over the previous 3 years, and chronic sleep impairment. However, he denied symptoms of exaggerated startle response and hypervigilance. The symptom of most concern to the Veteran was irritability, which his wife believed was increasing in severity. He admitted to snapping and yelling particularly at his wife and youngest son, and speculated that this may have gotten worse over the previous 3 years as he was home more frequently. The Veteran describes his mood as "fairly good;" reported he had activities he enjoyed; and he denied suicidal or homicidal ideation. He also denied symptoms consistent with panic, mania or hypomania. He described himself as a fairly easy person to get along with; however, he did hold grudges. He reported that he had no good friends, and he and his wife socialized primarily with family. He had gotten involved with his church and had started the hobby of constructing model trains. Also, he and his wife provided childcare for two of their grandchildren during the summer months. On mental status evaluation, the examiner observed the Veteran was neatly groomed and dressed in clothing appropriate for the interview. He was cooperative with the interview and answered questions completely and thoughtfully. His mood was described as mildly anxious, as he was observed to fidget. He was alert and oriented to person, place, and date. No fine or gross motor impairments were observed. The Veteran walked unaided. His thought processes were clear and goal directed, and there was no evidence of perceptual disturbances. The examiner indicated that speech was articulate and clear and within normal limits for volute, rate, and rhythm. Immediate memory task was performed without error and the Veteran was able to recall two of three items correctly on intermediate and delayed memory task, recalling the third item as pen rather than penny. Tests of mental control were good, as was attention and concentration. Impulse control appeared to be within normal limits. Verbal abstract reasoning skills were described as fair. Judgment and insight were described as intact. The Veteran is able to complete activities of daily living congruent with his age cohort and appears to be able to manage Veterans Administration benefits. The examiner opined that the Veteran continued to endorse symptoms consistent with PTSD and met the diagnostic criteria by DSM-IV-TR standards. In this regard, the Veteran had reported symptoms of re-experiencing to include nightmares, intrusive memories, and flashbacks, avoidance of thinking and talking about these traumas as well as activities related to them and emotional numbing, and increased arousal to include sleep difficulties, concentration difficulties, and irritability. The examiner noted that these symptoms did not appear to have been causing any difficulties for the Veteran in his occupational functioning as he successfully worked at one job for 30 years and another job for 15. However, the examiner noted that the Veteran's symptoms of PTSD were having impact on his social and interpersonal functioning; most noticeably and troublesomely to his marriage was his irritability. The Veteran was assigned a GAF score of 63 based on his current occupation and social functioning. The examiner noted that a score based only on symptoms of PTSD would be the same as the Veteran is experiencing moderate symptoms. In August 2008, the Veteran's VA clinical psychologist "Dr. K," who had treated the Veteran since 2005, noted that the Veteran tended to minimize his distress during his treatment and on VA examination. Instead, Dr. K noted that the Veteran experienced significantly increased anxiety, irritability, intrusive thoughts, nightmares and headaches. He also was noted to have experienced chronically anxious mood, irritability, anger outbursts, sleep disturbance, periods of depression, avoidance behavior, and relationship/interpersonal problems. In fact, Dr. K indicated that the Veteran had several relational breaches and significant social isolation as a result. He was described as "highly symptomatic," with intrusive reexperiencing nightmares, avoidance behaviors, anxiety, hypervigilance, concentration problems, sleep disturbance, periods of depression, and anger and irritability problems. Dr. K opined that the Veteran's symptoms had been significantly disabling for him and treatment was necessary for his continued stability, although it was not anticipated that there would be any significant changes in his condition in the foreseeable future. In September 2009, Dr. K provided a follow-up statement, in which the Veteran's additional symptoms of significant flashbacks for new military stressors were discussed. Here, Dr. K also reiterated the same findings as provided in the August 2008 statement. Significantly, in February 2011, the Veteran reported that he was feeling insecure and angry. He was disturbed at the volume of violent thoughts he had been experiencing; however, although he admitted to violent thoughts, there was no organized plan or intent to this and there was not, in the psychologist's judgment, any significant safety risk at that time. Also, in June 2012, a PHQ-2 screen was performed, and the score was 5, which indicated a positive screen for depression. An accompanying psychiatry note reveals that the Veteran reported having 1 experience 2 weeks prior, of fleeting thoughts of suicide. He denied active plans or intent and listed protective factors; however, he admitted to having felt overwhelmed and hopeless due to the confluence of multiple psychosocial stressors to include increasing PTSD symptoms, increased depression which is not typical for him, family stress (with his daughter and son-in-law) and martial distress. The practitioner did not judge the Veteran to be an imminent safety risk, nor did the Veteran. The Veteran affectively calmed over the session with less acute anxiety. A PHQ-9 screen was performed, the score of which was 16, which was suggestive of moderately severe depression. Also, a VHA Pocket Card Suicide Risk Questionnaire was completed. The Veteran indicated that he had been feeling hopeless about the present or future, and had thoughts of taking his life a couple of weeks prior to treatment. He denied having a plan to take his life and denied ever having had a suicide attempt. A week later, the Veteran denied active suicidal and homicidal ideation, plans and intent. He reported feeling he was past the crisis of his departure and he was conceptualizing the suicidal ideation he did have as just wanting an "out" option from all of the problems he was dealing with simultaneously. Again, there was not judged to be an active safety threat at that time. Most recently, in April 2013, the Veteran underwent a VA examination to evaluate the nature and severity of his PTSD. The Veteran provided a social/marital/family history of being married to his wife for approximately 44 years and having three sons and one daughter. He reported that he was estranged from one son, had little contact with another, and only had a supportive relationship with his youngest son. He also noted that his daughter lived in another state, and that his daughter's marital problems had been a source of stress to the Veteran and his wife. The Veteran indicated that he was currently retired since 2003, and that his new hobby involved collecting tor trains and painting "little village people" to keep himself preoccupied. The examiner indicated that the Veteran's PTSD caused him occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, and thinking and/or mood. In evaluating the Veteran's PTSD, the examiner noted that the Veteran experienced symptoms of intense fear; helplessness; anxiety; tearfulness; recurrent and distressing recollections of events including images, thoughts and perceptions; distressing dreams of the traumatic events of service; flashbacks; disruptive reexperiencing; persistent avoidance of stimuli; avoidance behavior; feelings of severe detachment or estrangement from others to most people; social isolation; sense of a foreshortened future; difficulty falling or staying asleep; and irritability and anger outbursts that affect his relationship with his wife. The Veteran denied experiencing any difficulty with concentration or persistent symptoms of increased arousal, and described only mild to minimal startle reaction. He noted that when he experienced flashbacks he had at times lost an awareness of his surroundings, and often had difficulty differentiating whether he had a "bad dream" or a flashback. The Veteran was diagnosed with PTSD and was assigned a GAF score of 50. The examiner noted that the Veteran had symptoms of PTSD which were very disabling and caused severe impairment in social functioning. The examiner indicated that due to the Veteran's symptoms he avoided any activities that reminded him of his trauma, had no or few friends, did not socialize and avoided events that reminded him of his trauma. The examiner noted that triggers such as helicopter sounds interfered with the Veteran's daily activities to the extent that he interrupted what he was doing to go to the basement away from the sight and sound. The examiner observed that the Veteran experienced chronic sleep problems and irritable mood, which also caused serious impairment in his ability to form or maintain relationships. The examiner indicated that while the Veteran did not have serious symptoms such as suicidal ideation or obsessional rituals, the significant impairment in social functioning caused by his PTSD justified the assignment of a GAF score of 50. The examiner concluded that with a reasonable degree of medical certainty that the Veteran's symptoms caused severe impairment in the Veteran's social and interpersonal functioning. Due to his symptoms, he avoids any activities that remind him of his trauma, has no or few friends, does not socialize, and avoids events that remind him of his trauma. Also, triggers such as helicopter sounds interfere with his daily activities to the extent that he interrupts what he is doing to go to the basement away from the sound/sight that resembles the traumatic event. The examiner noted that the Veteran experienced intense anxiety when he was away from home and could not get away from the external cue that resembled the traumatic event. He had chronic sleep problems and irritable mood, which also caused serious impairment in his ability to form or maintain relationships. Also, his irritable mood has impacted his marital life and his distressing dreams is one of the two reasons that made him sleep separately from his wife. Importantly, the Board notes that the symptoms, characterized by the April 2013 examination as indicative of serious impairment in social functioning, are symptoms the Veteran has experienced throughout the entire period of the appeal. As to social and occupational functioning, the Veteran had consistently been shown to have experienced irritability and aggressive behavior, as well as depressed mood, panic attacks, and occasional suicidal ideation. It is apparent from the record that the Veteran's home life had been impacted by his psychiatric disability. The Veteran self-isolates, has estranged relationships with most of his adult children, and has almost no outside activities. He must sleep separately from his wife due to his PTSD-related nightmares. He also reported that he experienced suicidal ideation that was not noted in the clinical record. 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 lay record show that the Veteran has had brief periods of suicidal 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. In this regard, the Board notes that the Veteran's fear of helicopters, observed and noted throughout the clinical record and in the April 2013 VA examination report, cause him stress to such a significant degree that he must flee for cover and discontinue whatever activity he is performing. Moreover, his relationships with several groups of people, including family members (his sons), his former fellow service members, and his psychiatrist, have been described as estranged and/or severed due irritability and anxiety related to his PTSD. Although he remains in a relationship with his wife, she has provided testimony that their relationship has been greatly strained by his PTSD symptoms. 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 chronic irritability, difficulty adapting to stressful circumstances, near continuous panic affecting the ability to function independently, appropriately and effectively, and an inability to establish and maintain effective relationships, 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 claim for an increased rating, 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. 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. REMAND Under Rice v. Shinseki, 22. Vet. App. 447 (2009), the Board must remand an increased rating issue if the Veteran, or the evidence of record, raises the issue of TDIU. In such cases, a request for a TDIU is not a separate "claim" for benefits but, rather, is an attempt to obtain an appropriate disability rating, either as part of the initial adjudication of a claim or as part of a claim for increased compensation. Id. In claims for a TDIU rating, the Court has held that the duty to assist requires that VA determine what effect the Veteran's service-connected disabilities have on his ability to work. 38 U.S.C.A. § 5107(a) (West 2002 & Supp. 2012); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2012). In a June 2013 "Appellant's Post-Remand Brief," the Veteran's representative argued that the Veteran is entitled to a TDIU rating related to his service-connected PTSD. As such, a claim for entitlement to a TDIU had been raised by the record and is considered "part and parcel" of the claims for benefits for the underlying disabilities. See Rice, 22 Vet. App. 447, 453-54 (2009). In TDIU claims, the Court has held that the duty to assist requires that VA obtain an examination, which includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. 38 U.S.C.A. § 5107(a) (West 2002 & Supp. 2012); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2012). The Board finds that neither the May 2008 VA examiner nor the April 2013 VA examiner provided an opinion, without regard to age or the impact of any nonservice-connected disabilities, whether the Veteran's service-connected disabilities, either separately or in combination, precluded him from securing and following a substantially gainful occupation consistent with his education and occupational experience. When the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); see also 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Thus, the Board finds that a VA examination and medical opinion is necessary to evaluate the severity of the Veteran's service-connected disabilities to include their impact on his ability to work. Also, the Veteran has not yet been provided with notice addressing the types of evidence needed to substantiate a claim for increase on the basis of a TDIU rating. Hence, the RO/AMC should provide the Veteran with such notice on remand. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide the Veteran with a letter requesting information, and, if necessary, authorization, to enable VA to obtain any additional evidence pertinent to the TDIU claim. In particular, the RO/AMC should specifically request that the Veteran complete and submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability, so that VA will have information concerning his past employment. The RO/AMC should explain the type of evidence that is the Veteran's ultimate responsibility to submit to substantiate claim for a TDIU rating, to include on an extraschedular basis, and what VA will do. The letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. The RO/AMC must schedule the Veteran for a general medical examination to ascertain the impact of all of his service-connected disabilities on his unemployability. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in Virtual VA. The examiner is asked to confirm whether paper and/or electronic records were available for review. The examiner must evaluate and discuss the effect of all of the Veteran's service-connected disabilities on the Veteran's employability. The examiner should opine as to whether it is as likely as not (i.e., a 50 percent or more probability) that the Veteran's service-connected disabilities, without consideration of his nonservice-connected disabilities or age, render him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed should be provided. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. Thereafter, and after undertaking any additional development deemed necessary, the RO/AMC must adjudicate the claim of entitlement to a TDIU. If the benefits sought are not granted, the RO/AMC must issue a supplemental statement of the case and allow the Veteran an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs