Citation Nr: 1324476 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 08-32 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) from February 15, 2005; in excess of 50 percent from March 9, 2007; and in excess of 70 percent from April 15, 2011. 2. Entitlement to a disability rating in excess of 20 percent for service-connected left upper extremity peripheral neuropathy. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 15, 2011. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from August 1964 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in North Little Rock, Arkansas. In August 2009, the Veteran and his spouse testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with his claims file. This matter was previously before the Board in April 2010 at which time it was remanded for additional development. As will be discussed further herein, the Board finds that the agency of original jurisdiction substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that during the pendency of this appeal, by rating actions dated in March 2008 and February 2012, the agency of original jurisdiction (AOJ) determined that the Veteran's PTSD warranted increased disability ratings, respectively, of 50 percent (effective as of March 9, 2007) and 70 percent (effective as of April 15, 2011). In February 2012, the AOJ also awarded entitlement to a TDIU (effective as of April 15, 2011). Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has not withdrawn the appeal as to the issues of disability ratings greater than assigned, therefore, the issues remain in appellate status as captioned above. (The issue of entitlement to a TDIU prior to December 1, 2008, is addressed in the remand that follows the decision below.) FINDINGS OF FACT 1. Since February 15, 2005, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas; however, it has not been productive of total occupational and social impairment. 2. The Veteran's peripheral neuropathy of the left upper extremity is manifested by no more than moderate incomplete paralysis during the entire pendency of the claim. 3. The Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities from December 1, 2008. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent disability rating, but no higher, for service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for a disability rating in excess of 20 percent for left upper extremity peripheral neuropathy are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8615 (2012). 3. The criteria for a TDIU rating from December 1, 2008, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.102 , 3.340, 3.341, 4.3, 4.15, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in March 2005, April 2006, December 2006, April 2007, November 2007, July 2008, and April 2010 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Concerning the claim for an increased initial disability rating for PTSD, as will be explained below, this is an appeal arising from a grant of service connection in a November 2006 rating decision; and as the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, in the above-mentioned letters and other correspondence provided by the RO, the Veteran was notified of the type of evidence needed to substantiate the claim, namely, 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. For increased compensation claims, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, 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. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above-mentioned letters and other correspondence provided by the AOJ. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Board further observes that this case was remanded in April 2010 in order to afford the Veteran a VA examination so as to assess the severity of his asserted disabilities. Thereafter, the Veteran was afforded the requested VA examinations. Therefore, the Board finds that the agency of original jurisdiction has substantially complied with the remand directives such that no further action is necessary in this regard. See D'Aries, supra. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. II. Higher Rating Claims Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection 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 (1994). When a Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). PTSD The Veteran's service-connected psychiatric disorder has been rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012), which provides the rating criteria for PTSD. Mood disorders are rated under the General Rating Formula for Mental Disorders, which provides that a 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 50 percent disability rating is warranted for 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 30 percent disability rating is warranted 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). Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased disability rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. The Global Assessment of Functioning (GAF) 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 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994); 38 C.F.R. § 4.125 (2012). A GAF of 31 to 40 is defined as exhibiting some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any 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). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. The Board notes that in Buie v. Shinseki, 24 Vet. App. 242 (2010), the United States Court of Appeals for Veterans Claims (Court) held that even in increased rating claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) (2012) requires any subsequent decision to relate back to the original claim. Id. at 251-52; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). A review of the Veteran's claims file reveals that following the issuance of a January 2003 rating decision denying service connection for PTSD, there is no evidence received within one year which relates to the issue. In February 2005, the Veteran filed a claim to reopen the previously denied claim of entitlement to service connection for PTSD. Service connection was then granted by the RO in November 2006, at which time an initial 30 percent disability rating was assigned effective as of February 15, 2005, the date of the claim to reopen. In March 2007, within one year of the November 2006 rating decision, the Veteran submitted a Statement In Support Of Claim (VA Form 21-4138) requesting a higher disability rating as his PTSD was much worse. The Board construes this as a timely filed notice of disagreement as to the initial 30 percent disability rating. Thus, with respect to the Veteran's claim seeking an increased disability rating, the November 2006 rating action is the proper rating decision on appeal. VA outpatient treatment records dated from March 2005 to August 2005 show that the Veteran was treated intermittently for symptoms which included intrusive memories, nightmares, depression, sadness, irritability, decreased interest in activities, hopelessness, decreased energy, increased sleep, previous suicidal ideation, and having a mood disorder due to a medical condition, prolonged post traumatic stress disorder, and dementia. He was assigned a GAF of 40. A VA examination report dated in May 2006 shows that the Veteran reported constant depression. He would have nightmares about three to four times a month, along with numerous intrusive thoughts. He was getting along well with his wife, but not working since 1995 due to physical problems. It was also noted that he would have some dysphoria and euthymic mood with depression. Affect was appropriate to content. Memory was grossly intact. He was oriented in all spheres. He reported no hallucinations or delusions. Insight and judgment were adequate. He denied current suicidal and homicidal ideations. The diagnosis was PTSD. A GAF of 50 was assigned. The examiner stated that he did not find evidence that the PTSD precluded employment, that depression was a symptom of PTSD, and that no impairment in thought processing or communication was noted. VA outpatient treatment records dated from February 2007 to January 2008 show continued treatment for symptoms associated with PTSD, major depression, and dementia. GAF scores of 40 were assigned. Neuropsychological testing showed (1) abnormal test results consistent with mild to moderate higher cortical dysfunction, slightly more pronounced in the left hemisphere; (2) mildly impaired attention, concentration and short-term memory with psychogenic factors contributing to the dysfunctions, and (3) abnormal Minnesota Multiphasic Personality Inventory (MMPI)-2 profile, consistent with somatization disorder with underlying chronic depression and anxiety. A VA examination report dated in May 2007 shows that the Veteran reported having difficulty controlling his temper. He would experience nightmares that would occur about three or four times a month, at which time he would awaken, often in a sweat. It would be a while before he could return to sleep. Most nights, however, he would be able to get seven to eight hours of sleep. He would have intrusive thoughts during the day, and there did not seem to be any particular trigger. It was something that would occur two or three times a week at least. He would easily startle. He would often have a sense that someone was behind him, but when turning around there would be no one there. He would enjoy going to restaurants and would walk around large stores, though he would not always enjoy being there. He remained married to his wife of 40 years, and was got along well, other than his losing his temper. He would, at times, get confused. He had not worked since 1995 due to physical health problems. He would spend a lot of time puttering around the house and reading. It would be difficult to concentrate or remember what he had read. He would visit with people at church. He denied alcohol or drug use. Mental status examination revealed that he was casually groomed and fully cooperative. He walked with the aid of a cane. He displayed some dysphoria. Speech was within normal limits with regard to rate and rhythm. Mood was generally euthymic with some depression noted. Affect was appropriate to content. Thought processes and associations were logical and tight. No loosening of associations or confusion was noted. Memory was grossly intact. He was oriented in all spheres. There was no report of hallucinations and no delusional material was noted. Insight and judgment were adequate. He denied suicidal or homicidal ideation. The diagnosis was chronic PTSD. A GAF score of 48 was assigned. The examiner further commented that symptoms were moderate and had persisted for years. The examiner did not see evidence that there would be a significant change in functioning over the next six to 12 months. No evidence was found that PTSD symptoms precluded employment. There was no reported grossly impaired social functioning. It was noted that other diagnoses had suggested cognitive difficulties. VA outpatient treatment records dated from March 2008 to May 2009 show that the Veteran continued to receive intermittent treatment for symptoms associated with his PTSD. He described ongoing sleep disturbance, nightmares, irritability, depression, sadness, and seeing "spiders" and other things in the periphery of his vision or when awakening in the morning, though he did not regard these as hallucinations. It was noted that he continued to have mild intermittent suicidal ideations. Impressions included PTSD, major depressive disorder, and cognitive impairment. He was assigned GAF scores of 40. A letter from his VA psychiatric social worker dated in December 2008 shows that the Veteran was being followed for PTSD. It was indicated that he was at one time thought to have dementia and a seizure disorder, but that was ruled out following April 2008 findings from Neurology Service. He was noted to have significant memory deficits. During his August 2009 hearing, the Veteran and his spouse testified that he would experience increased anxiety, to the point that he would sleep with a gun by the bed. He also felt he had to put extra locks on the door. He described increased irritability and avoidant behavior. He would not drive. He also reported experiencing memory loss, difficulty with concentration, and panic attacks. His hobbies were limited to reading and doing chores. He would go to church and quarterly meetings with associates from his former place of employment. A VA examination report dated in April 2011 shows that the Veteran was thought to be a reliable historian. He was said to be alert, oriented, and cooperative. His thoughts were clear and goal oriented. Mood appeared anxious and depressed. Affect was guarded. He was unable to recall two out of the three objects after five minutes, however, the rest of the mental status examination was grossly intact. He described significant difficulty with memory and concentration on a daily basis. He would have ongoing hypervigilance. Speech and communication were appropriate. There was no evidence of panic, paranoia, suicide ideations, delusions, hallucinations, or obsessive rituals. The diagnosis was PTSD. A GAF score of 40 was assigned. The Veteran was said to be able to maintain minimal personal hygiene and was competent to manage financial affairs. The examiner added that the service-connected disabilities alone precluded him from obtaining and functioning in gainful employment. His psychiatric symptoms of significant cognitive difficulties impacting short-term memory were so significant as to alone cause him be unable to function in a work setting. In addition, the significant other symptoms of PTSD, to include depression, anxiety, hypervigilance, decreased energy, anger, irritability, and excess startle reaction, all would render him unable to establish and maintain effective work place relationships and unable to adapt to stressful work circumstances. Since the date of his claim for service connection in February 2005, the Veteran has described experiencing depression, anxiety, nightmares, intrusive thoughts, sleep disturbance, memory loss, guarded affect, hypervigilance, decreased energy, anger, irritability, and increased startle response. He has also, on occasion, been noted to have suicidal thoughts, without plan, and visual hallucinations. His GAF scores during the entire period on appeal have primarily been 40, with one 48 and one 50. These scores suggest a disability at best characterized as exhibiting serious symptoms with serious impairment in social and occupational functioning, but mostly representing some impairment in reality testing or communication, or major impairment in several areas, such as work, family relations, judgment, thinking or mood. Although he did not exhibit all of the symptomatology consistent with a 70 percent disability rating, the Board finds that overall, his disability picture from February 15, 2005, meets the criteria for an initial 70 percent disability rating. See Mauerhan, 16 Vet. App. at 442. The Board recognizes that, at times, it had been thought that some of the Veteran's symptoms had been related to dementia or to a seizure disorder. However, notwithstanding the fact that such have been ruled out, as it nevertheless does not appear that it is medically possible to distinguish the PTSD symptomatology from any such non-service-connected disorder, the provisions of 38 C.F.R. § 3.102 mandate that reasonable doubt be resolved in the Veteran's favor, and that all signs and symptoms be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board has additionally reviewed the evidence to determine if a disability rating in excess of 70 percent may be assigned under the rating criteria. A 100 percent disability rating for PTSD requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. While the Veteran has exhibited memory loss, during the August 2009 hearing he specifically indicated that he could recall the names of close relatives. Moreover, it has not been shown that he has exhibited gross impairment in thought processes or communication, persistent delusions or hallucinations, gross inappropriate behavior, an inability to perform activities of daily living, or disorientation to time or place. In short, the Veteran has not exhibited total impairment in most of the areas needed for a 100 percent disability rating and total social impairment has not been shown. The Board has considered the statements of the Veteran and his spouse as to the extent of his symptoms over the course of the entire appeal. They are certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In evaluating a claim for an increased schedular rating, however, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Accordingly, the Board finds that the overall disability picture over the entire course of the period on appeal most closely approximates the criteria for a 70 percent disability rating. Consideration has been given to additional staged ratings since the date of the Veteran's claim (i.e., different percentage ratings for different periods of time). See Fenderson, 12 Vet. App. at 119. However, there appears to be no identifiable period of time since the date of claim during which the PTSD warranted a disability rating higher than 70 percent. Peripheral Neuropathy of the Left Upper Extremity The Veteran's peripheral neuropathy of the left upper extremity has been rated as a neurological condition under 38 C.F.R. § 4.124a, Diagnostic Code 8615, which provides the criteria for paralysis of the median nerve. During his August 2009 hearing, the Veteran confirmed that he was right hand dominant. As such, the left upper extremity disability affects his minor upper extremity. Under this diagnostic code provision, a 10 percent disability rating is warranted where there is mild incomplete paralysis. A 20 percent disability rating is warranted where there is moderate incomplete paralysis of the minor hand. A 40 percent disability rating is warranted where there is severe incomplete paralysis of the minor hand. Complete paralysis of the minor hand warrants a 60 percent disability rating. "Complete paralysis" consists of the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand ("ape hand"); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of the middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2012). "Incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type given for complete paralysis, whether due to varied level of the nerve lesion or partial regeneration; when the involvement is wholly sensory, the rating should be for the mild, or at most the moderate, degree. 38 C.F.R. § 4.124a, Diagnostic Codes 8410 to 8540 (Diseases of the Peripheral Nerves). A VA peripheral nerves examination report dated in May 2006 shows that the Veteran was said to have peripheral neuropathy associated with non-insulin dependent diabetes mellitus. He described, in pertinent part, numbness in the hands with associated burning pain. He would have difficulty with fine motor function and weakness of grip. He would at times get shaking in the hands. Physical examination revealed deep tendon reflexes traced to 1+ in the upper extremities. Motor examination revealed some decreased strength in the intrinsic muscles of the hands. Fine motor functions were slow. He had decreased pinprick and vibration in a stocking/glove distribution. The impression was mild to moderate diabetic polyneuropathy involving all four extremities. A VA peripheral nerves examination report dated in May 2007 shows that the Veteran, in pertinent part, reported a history of difficulty with his arms. He stated that he had not had any burning in the hands, but that he did have tingling and numbness. Physical examination revealed that the Veteran was well-developed, well-nourished, and pleasant in no acute distress. He was talkative, alert, cooperative, and oriented to person, time and place. His head was normocephalic with no signs of trauma. The pupils were equal and reactive to light. Fundoscopic examination revealed the temporal disc margins to be sharp and with good physiological cupping, bilaterally. Extraocular movements had full range of motion without nystagmus. There was no visual field loss to confrontation. The remainder of the cranial nerves were normal. Motor (muscle) system had good strength in all four extremities. Deep tendon reflexes were slightly diminished in the biceps, triceps, and brachioradialis. The diagnosis was sensory peripheral neuropathy secondary to diabetes, classified as mild. All four extremities were involved. VA outpatient treatment records dated from September 2008 to May 2009 show that the Veteran was treated intermittently for symptoms associated with his left upper extremity disability. In November 2008, he specifically reported left shoulder and arm pain, with the impression being tendon injury. There was no indication that this was related to the diabetic neuropathy. During his August 2009 hearing, the Veteran reported continued symptoms associated with left upper extremity neuropathy, to include decreased grip strength and cramping. A VA peripheral nerves examination report dated in May 2010 shows that Veteran reported numbness and tingling of the hands, as well as cramping and difficulty gripping things. Physical examination revealed that he was in no acute distress. Deep tendon reflexes were 1+ and equal in the upper extremities. Motor examination revealed fairly good strength proximally in the upper extremities. He had some give-way weakness due to effort in the intrinsic muscles of the hands, but this seemed about the same from one hand to the other. Sensory examination showed a decrease pinprick and vibration of the glove distribution. The diagnosis was left upper extremity neuropathy. The examiner added that there was some loss of sensation in the hand and arm. The examiner concluded that there was a very mild left upper extremity neuropathy mainly involving sensory function of the left upper extremity. A private electromyograph study from D. Oberlander, M.D., dated in June 2010, shows that the Veteran, in pertinent part, reported worsening numbness, tingling, and burning pain. Motor examination was within normal limits. Reflexes were 1+/4+ at the biceps, triceps, brachioradialis, patella, and ankle, bilaterally. Sensory evaluation revealed normal sensation to pinprick and light touch with the exception of the mid-calf region. Dr. Oberlander concluded that the symptoms were consistent with peripheral neuropathy related to diabetes mellitus. A letter from Dr. Oberlander dated in October 2010 shows that the Veteran was said to have moderately severe peripheral neuropathy that renders the Veteran disabled and unemployable. Dr. Oberlander, however, did not specifically describe the severity of the left upper extremity. In an addendum dated in January 2012, the VA examiner who conducted the May 2010 VA examination reiterated that the Veteran had a very mild polyneuropathy of all four extremities, and that the involvement of the left upper extremity was very mild mainly due to sensory loss. Having considered the medical evidence of record, the Board finds that the Veteran's peripheral neuropathy of the left upper extremity does not meet the criteria for the assignment of the next higher 40 percent disability rating for incomplete paralysis of the non-dominant upper extremity. In this regard, there is no indication that the left upper extremity disability is manifested by either severe incomplete paralysis or by complete paralysis. The Veteran's disability has been consistently characterized as very mild to moderate. While Dr. Oberlander suggested in October 2010 that the Veteran had moderately severe peripheral neuropathy, he did not suggest that this level of severity was specific to the left upper extremity. Clinical evidence does not show that the Veteran's symptoms cause anything more than mild to moderate impairment. Accordingly, review of the medical evidence does not show that the Veteran warrants a disability rating greater than the currently assigned 20 percent. The Board has considered the statements of the Veteran and his spouse as to the extent of his symptoms over the course of the entire appeal. They are certainly competent to report that his symptoms are worse. Layno, 6 Vet. App. at 470. In evaluating a claim for an increased schedular rating, however, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Accordingly, the Board finds that the overall disability picture over the entire course of the claim period most closely approximates the criteria for a 20 percent disability rating. Based upon the guidance of the Court in Hart, the Board has considered whether a staged rating is appropriate. However, in the present case, the Veteran's symptoms remained constant throughout the course of the claim period and, as such, staged ratings are not warranted. Extra-schedular Consideration Finally, the Board finds that the Veteran's PTSD and peripheral neuropathy of the left upper extremity do not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id; see 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's PTSD and peripheral neuropathy of the left upper extremity is contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been discussed above, the ratings assigned herein are appropriate. In this regard, as a result of this decision, the PTSD has been awarded an increased initial disability rating of 70 percent from the date of claim. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claims will not be referred for extra-schedular consideration. III. TDIU prior to April 15, 2011 The Veteran initially filed a claim of entitlement to a TDIU rating in October 2005. His claim of service connection for PTSD, for which the assigned disability rating is on appeal herein, was received in February 2005. The Board also notes that in February 2012, entitlement to a TDIU was granted effective as of April 15, 2011. As such, the Board will consider entitlement to a TDIU rating prior to April 15, 2011. Total disability ratings for compensation will be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340 and 4.16(a). However, if there is only one such disability, it shall be ratable at 60 percent or more, and, 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. § 4.16(a). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the Veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. 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." In this context, the Court, citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975), noted the following standard: 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 unemployable upon termination of employment that was provided on account of disability or in which special consideration was given on account of the same. See 38 C.F.R. § 4.18. Since the date of claim referenced above, service connection has been in effect for the PTSD, rated at 70 percent; peripheral neuropathy of the right upper extremity, rated at 20 percent; peripheral neuropathy of the left upper extremity, rated at 20 percent; diabetes mellitus, rated at 10 percent prior to November 17, 2005, and 20 percent since then; peripheral neuropathy of the right lower extremity, rated at 10 percent; and peripheral neuropathy of the left lower extremity, rated at 10 percent. The combined disability rating during this period is 90 percent. As such, the Veteran satisfies the requirements under 4.16(a) and the sole question, thus, becomes whether his service-connected disabilities, in and of themselves, preclude him from securing or following a substantially gainful occupation. During his August 2009 hearing, the Veteran indicated that he left his job in 1995 because of problems associated with his PTSD and diabetes mellitus. He described trouble with his extremities and that he had been passing out. He added that the symptoms associated with the PTSD were prevalent, but had not yet been identified as such. The December 1, 2008, letter from the Veteran's VA psychiatric social worker indicates that the Veteran was being followed for PTSD. It was indicated that he was at one time thought to have dementia and a seizure disorder, but that was ruled out following April 2008 findings from Neurology Service. He was noted to have significant memory deficits. It was also indicated that he was being treated for diabetic neuropathy, chronic pain, chronic obstructive pulmonary disease, sleep apnea and hypertension. He had not worked since 1995. It was opined that the Veteran was not employable, and if he did manage to be hired, he would not be able to sustain employment. The October 2010 letter from Dr. Oberlander shows that the Veteran was said to have moderately severe peripheral neuropathy which rendered him disabled and unemployable. Based on the foregoing evidence of record, and resolving doubt in the Veteran's favor, the Board finds that he was unemployable due to his PTSD and diabetic peripheral neuropathy as early as December 1, 2008. (The Board will discuss entitlement to a TDIU prior to December 1, 2008, in the remand below.) The medical evidence referenced above shows that the Veteran has not worked since 1995, and that as of December 1, 2008, he was said not to be employable, at least, in part, because of his PTSD and diabetic neuropathy. A medical opinion that is a factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Given that the Board finds the December 2008 letter from the VA medical care provider to be persuasive, the Board resolves reasonable doubt in the Veteran's favor to find that his service-connected PTSD, diabetes mellitus, and diabetic peripheral neuropathy have combined to make him incapable of obtaining or retaining substantially gainful employment as of December 1, 2008. ORDER An initial 70 percent disability rating for service-connected PTSD, but no higher, from February 15, 2005, is granted, subject to the applicable criteria governing the payment of monetary benefits. A disability rating greater than 20 percent for service-connected left upper extremity peripheral neuropathy is denied. Entitlement to a TDIU from December 1, 2008, is granted, subject to the provisions governing the award of monetary benefits. REMAND As to the issue of entitlement to a TDIU prior to December 1, 2008, the Board finds that further development of the record is necessary. As noted above, the December 2008, letter from the Veteran's VA psychiatric social worker indicates that he was at one time thought to have dementia and a seizure disorder, but that had been ruled out following an April 2008 Neurology evaluation. Prior to December 2008, it is unclear whether the Veteran's symptoms associated with his PTSD, which were previously categorized as dementia and a seizure disorder, rendered him incapable of obtaining or retaining substantially gainful employment. In this regard, prior to December 2008, the Veteran was consistently assigned GAF scores ranging between 40 and 50 suggesting a disability causing serious to major impairment in occupational functioning, with some impairment in reality testing or communication. The VA examiner in May 2006 and May 2007, however, indicated that the PTSD did not preclude employment. The Court has held that VA has an obligation to obtain retrospective medical opinions in instances where there is competent evidence suggesting that a higher rating may be appropriate during a relevant period but insufficient clinical evidence to determine whether such an increase is, in fact, warranted. See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). In light of the discrepancy described above, and given that the one-time assessments of dementia and seizure disorder have been ruled out, the Board finds it necessary to remand the issue of entitlement to a TDIU prior to December 1, 2008, in order for a VA examiner to provide a retrospective medical opinion as to whether the Veteran was unemployable due to the combined effect of his service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction should forward the Veteran's claims file to an appropriate VA medical examiner so that a retrospective medical opinion may be provided as to whether the Veteran was unemployable due to his service-connected disabilities for the period from February 15, 2005, to December 1, 2008. The examiner is specifically requested to opine as to whether it was at least as likely as not that the Veteran's service-connected disabilities, in combination, precluded him from securing or following substantially gainful employment for which his education and occupational experience would otherwise qualified him. The examiner must provide reasons for the opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 2. The AOJ should thereafter review the Veteran's claims file and ensure that the foregoing development actions have been completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 3. The AOJ should then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response before the case is returned to the Board. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs