Citation Nr: 1325689 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-04 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated 50 percent disabling. 2. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from January 1969 to November 1972. He received the Combat Action Ribbon, among other decorations. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota that denied an increased rating for PTSD. The matter of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT PTSD is productive of moderate to significant occupational and social impairment, without deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood or symptoms that are equivalent to those that are examples of symptoms warranting a rating in excess of 50 percent. CONCLUSION OF LAW The schedular criteria for a rating in excess for 50 percent for PTSD are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. Pub.L. 112-154, §§ 504(a)(1)-(2) (to be codified at 38 U.S.C.A. § 5103(a)); 38 C.F.R. § 3.159(b)(1) (20). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Adequate VCAA notice in an increased rating claim requires that the claimant be told that to substantiate a claim the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; that should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); vacated and remanded in part Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In a March 2009 letter, the agency of original jurisdiction (AOJ) notified the Veteran of information and evidence necessary to substantiate his claim. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. In the March 2009 letter, the Veteran was informed of how VA determines disability ratings and effective dates, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); and was given the notice required by the surviving portions of Vazquez-Flores. The AOJ satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(b). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). His service treatment and personnel records and VA and private records have been associated with the claims file, to the extent available. All reasonably identified and available medical records have been secured. A review of the Veteran's Virtual VA electronic file does not reveal any additional evidence relevant to the claim of a higher rating for PTSD currently on appeal. In July 2009 and August 2010, the Veteran underwent VA examinations and these examination reports are of record. The July 2009 and August 2010 VA examination reports are adequate for rating purposes as the claims file was reviewed, the examiners reviewed the pertinent history, examined the Veteran, provided clinical findings and diagnoses, and offered etiological opinions with rationales from which the Board can reach a fair determination. The Board finds the duties to notify and assist have been met. II. Factual Background and Legal Analysis Contentions In written statements in support of his claim, including his March 2009 notice of disagreement, the Veteran reported that he found it increasingly difficult to establish and maintain effective relationships with his friends and family and preferred to be alone. He also found it difficult to be in stressful situations and, although he was retired, found work like settings stressful. He was easily irritated by things that had never previously bothered him. He reported that his spouse indicated that he exhibited inappropriate behavior in private and public, sometimes in response to what others said. This happened more and his spouse indicated that some of their friends noticed and mentioned it to her. Further, in his April 2010 substantive appeal, the Veteran argued that his social and occupational functioning was moderately impaired only if he took his prescribed medication and constantly kept himself busy. He had difficulty in adapting to stressful situations and tended to avoid activities that caused less effective social and work relationships. The Veteran was not currently working and was let go from his last job because he was unable to interact with his fellow workers. He wanted to complete a job one way and they wanted to do it another way. The Veteran was unable to be flexible enough to change the way co-workers wanted things done. He believed his PTSD interfered with his ability to interact with others and affected his ability to get and hold a job. The Veteran also was irritable, yelled, and experienced road rage. Rating Criteria Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the court noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. Id. In the case of an increased rating, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The General Rating Formula for Mental Disorders, including Diagnostic Code 9411, that evaluates PTSD, at 38 C.F.R. § 4.130, provides the ratings for psychiatric disabilities. A 50 percent rating is warranted if the disability is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating contemplates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability 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. Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM IV), page 32). A GAF score of 41 to 50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51 to 60 indicates the examiner's assessment of moderate symptoms (e.g., a flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61 to 70 denotes mild symptoms or some difficulty in social and occupational functioning. While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Rather, GAF scores are but one factor to be considered in conjunction with all the other evidence of record. When it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102; Mauerhan v. Principi, 16 Vet. App. 436 (2002) (factors listed in the rating formula are examples of conditions that warrant a particular rating and are used to help differentiate between the different evaluation levels.). A veteran may only qualify for a given rating based on mental disorder by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Although a veteran's symptomatology is the primary consideration in assessing a disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in "most areas" for the 70 percent rating. Vazquez-Claudio v. Shinseki 713 F.3d 112 (Fed. Cir. 2013). Facts Evidence The Veteran served in combat in Vietnam. The RO granted service connection for PTSD in a July 1997 rating decision that assigned an initial 30 percent disability rating under Diagnostic Code 9411, based on stressors experienced during his Vietnam service. In an October 2006 rating decision, the RO increased the rating to 50 percent. In January 2009, the RO received a claim for an increased rating. VA medical records, dated from May 2008 to August 2010, reflect that the Veteran's service-connected PTSD with major depression is treated with regular outpatient evaluation for prescribed psychotropic medication management. When seen by VA in May 2008 for medication management, the Veteran's mood was euthymic and he denied any suicidal or homicidal ideation. He was appropriately groomed and a little restless. His speech was normal and his eye contact was good. The Veteran's thoughts were organized. The Veteran's insight and judgment were appropriate and his prescribed medications were adjusted. A GAF score of 57 was assigned. However, when seen by VA in August 2008, the Veteran's mood was irritable and anxious and he denied suicidal or homicidal ideation and depressive symtoms. His affect was constricted when he entered the interview but he was quite irritable. The Veteran's mood was dysthymic and very anxious. His speech was normal, his thoughts were organized, and he denied suicidal or homicidal thoughts. A GAF score of 55 was assigned. A June 2009 VA outpatient clinic record shows that the Veteran said that he felt fine but appeared very anxious. He kept himself busy by fishing and spends winters in Florida. He denied suicidal or homicidal ideation and had still had sleep problems. He was appropriately groomed and very nervous. His speech was normal and his eye contact was good. The Veteran's affect was full and his mood was euthymic. His thoughts were organized and goal-directed and he denied suicidal or homicidal ideation. Insight and judgment appeared appropriate. The Veteran underwent VA examination in July 2009. It was noted that his medical history was essentially unchanged since last examined by VA in October 2006. He took prescribed medications for sleep difficulty and PTSD but did not participate in individual or group psychotherapy. The Veteran's fiancé attended the interview and it was noted that they were together for sixteen years in a committed relationship. She described him as "disrespectful to everybody", irritable, angry, and argumentative and reported that "he does not take into consideration other people's feelings." They both agreed that they did little socializing and, when they did, it was on his terms, that was for a brief time. She found this hard to take and it resulted in significant social isolation. The Veteran and his fiancé lived together and she had an older son with whom the Veteran regularly interacted. The Veteran has a son and daughter with whom he regularly interacted. He fished approximately twice a week and did yard work. He smoked marijuana regularly. There was no new report of violent behavior and no new report of assault. The Veteran continued to have difficulty controlling his temper, threw things around, and hit walls. There was one incident in which he shoved his fiancé. On examination, the Veteran was appropriately dressed and groomed. He initially displayed psychomotor agitation with bouncing knees but relaxed. His speech was logical and linear, indicating no psychotic process. The Veteran's affect was full range. His mood was anxious with some depression and he was oriented. The Veteran's thought content was appropriate and he denied delusions and hallucinations. His judgment was poor with poor insight into the relationship between his behavior and the outcome of his behavior. Further, the Veteran had on-going sleep difficulty. His impulse control was poor with regard to temper management. He acknowledged that he spoke before he thought that often resulted in hurting people about whom he cared. His fiancé noted that she often felt controlled and emotionally threatened as a result. He was able to conduct activities of daily living. He did outside work around the home and helped inside when asked. There were no reported problems with memory and none were observed. He denied current suicidality or homicidality and denied suicidal or homicidal impulses since last examined in 2006. As to PTSD symtoms, the Veteran had persistent re-experiencing symtoms approximately twice a week. He had nightmares three to four and up to five or six times a week. Physiological reactivity was triggered by the sound of helicopters and other internal and external cues. The Veteran exerted effort to avoid thoughts, feelings, or conversations associated with trauma. He tried to avoid activities, places, or people that aroused recollections of the trauma. The Veteran exhibited a marked diminished interest and diminished participation in significant activities. He reported feelings of detachment and emotional numbing and a restricted range of affect. The Veteran had sleep difficulties, irritability, and outbursts of anger, hypervigilance, and an exaggerated startle response. The VA examiner noted that the Veteran's PTSD created significant distress and impairment in important areas of functioning. The Axis I diagnoses included PTSD and marijuana abuse and a GAF score of 55 was assigned. The VA examiner commented that the Veteran's PTSD was essentially unchanged since 2006. The Veteran continued to resist comprehensive treatment, including psychotherapy, but participated in psychiatric care, although was occasionally non-compliant with prescribed medications. An October 2009 VA medical record shows that the Veteran was seen by a nurse for medication management. He sometimes forgot to take his prescribed medication. The Veteran's mood remained anxious and he denied suicidal or homicidal ideation. He had nightly nightmares. The Veteran continued to use cannabis and the clinician expressed thoughts about that taking away his motivation to do anything. Objectively, the Veteran was appropriately groomed. He sat calmly and had good eye contact. His speech was normal, his affect was superficially full, and his mood was anxious. The Veteran's thoughts were organized and goal-directed. He denied suicidal or homicidal ideation. Insight and judgment were appropriate. His medications were adjusted and he was advised to decrease or stop his cannabis use. According to a November 24, 2009 Vet Center intake record, the Veteran had significant anger, rage, nightmares, and past resistance to counseling. He was referred to a VA outpatient clinic for psychotherapy. When evaluated by a VA clinic psychiatrist on December 21, 2009, the Veteran's PTSD symtoms included flashbacks, intrusive thoughts, combat-themed nightmares, anxiety, depressed mood, constant motoric restlessness, increased irritability, avoidance of people and social isolation, low energy, anhedonia, low motivation, decreased concentration, and daily cannabis use that helped numb the symtoms. He denied past or current psychotic symtoms or suicidal behavior. The Veteran had suicidal thoughts intermittently in the remote past but not recent. His current girlfriend of 15 years recently told him she would leave if he did not get some help with his symtoms. In the mid 1990s, he took medication prescribed by VA that was moderately helpful. He never had any in-patient treatment or formal psychotherapy and was not on psychotropic medications for several months. The Veteran smoked cannabis daily. On examination, the Veteran was fully oriented with moderately severe, constant motoric restlessness. His dress, grooming, hygiene, and eye contact were fair and his speech was normal and reflected linear thought. The Veteran's mood was depressed and his affect was anxious. He denied suicidal or homicidal thoughts, ideas, or plans. The Axis I diagnoses included PTSD, major depressive disorder, and cannabis dependence. A GAF score of 50 was assigned. Psychotropic medications were prescribed and the Veteran agreed to stop using cannabis. Psychotherapy with a social worker was also advised. In a January 28, 2010 VA outpatient record, the Veteran's clinic psychiatrist noted that the Veteran reported clear improvement in both mood and decreased irritability and changes were also noted by his wife. The Veteran still had significant general anxiety, social avoidance, and occasional combat-related nightmares but, in general, was pleased with the results of his prescribed medications. He denied suicidal or homicidal thoughts and there were no psychotic symtoms detected. From February to April 2010, VA medical records show that the Veteran participated in psychotherapy with a VA social worker According to a February 9, 2010 VA social work note, the Veteran had a "strange" affect. He spent his days fishing and/or going out to eat or to a movie with his girlfriend. The Veteran had bad dreams and, when not on his medication, had a short temper and angry outburst. When seen by his VA clinic psychiatrist on March 16, 2010, the Veteran's mood was described as often in the euthymic range (and) at times, mildly depressed. The Veteran was not anhedomnic and he still had combat-related nightmares several times weekly, general anxiety, and hypervigilance that was still moderately severe. He was alert and oriented and his dress, grooming, hygiene, and eye contact were fair. No psychotic symtoms were detected. He denied suicidal or homicidal thoughts, ideas, or plans. An April 20, 2010 VA outpatient record shows that the Veteran's psychiatrist reported that the Veteran was doing a bit better. The Veteran's mood was generally euthymic. His anxiety was still present but less so and he was sleeping somewhat better but still had nightmares. The Veteran was able to enjoy life more and thought his prescribed medications were moderately helpful. He noted that his wife noticed a fairly significantly improvement, especially in the area of irritability (that was clearly decreased on the medications). The Veteran denied psychotic symtoms or suicidal thoughts. He was alert and fully oriented. His dress, grooming, hygiene, and eye contact were fair. His speech was normal. He denied suicidal or homicidal thoughts, ideas or plans. VA outpatient mental health records dated in August 2010 reflect a GAF score of 55. In August 2010, the Veteran underwent VA examination. The examiner reviewed the Veteran's medical records that reflected his outpatient treatment for a mental health disorder over the past year and reflected his lack of interest, poor motivation, and that nothing seemed to hold his interest. When asked to comment on the effectiveness, that is, what changed in his mood, ability to think, and symtoms of depression or anxiety, the Veteran replied "I don't think it's changed." The Veteran felt depressed all the time, was unable to get anything done, and did not want to do anything. He frittered away his time "unwisely," watching television or looking out the window. The Veteran stated that it "[s]eems like I've lost interest in almost anything. I have to push myself to do anything. There's nothing real important." He stated that he "wish[ed] things would get better." The Veteran was unmarried and lived with the same woman for the past eighteen years. He had children living in Minnesota and Alaska. He stated that his marital and family relationships were "al[l] right, could be better, could be a lot worse." The Veteran described his social relationships as "[n]ot very good." He "[h]as only 'a couple' of friends" with whom he got together on an infrequent basis. The Veteran hunted and fished but did "[n]not really" do anything else. The VA examiner reported that the Veteran was not very socially involved, with few interests, activities or friends. He made allusions to significant conflict with his life partner. On examination, the Veteran was clean, neatly groomed, and appropriately and casually dressed. He was able to maintain minimum personal hygiene. He was restless during the interview. The Veteran's speech was impoverished and clear. His attitude toward the examiner was guarded and his affect was constricted. The Veteran's mood was anxious and dysphoric. His attention was intact and he was oriented. The Veteran's thought process was unremarkable and there were no delusions or hallucinations. He understood the outcome of behavior and that he had a problem. The Veteran had disturbing combat-related dreams three to four times a night. There was no inappropriate behavior, obsessive/ritualistic behavior, panic attacks, or homicidal thoughts. The Veteran had suicidal thoughts. He felt useless, especially if something did not go right and thought he might be better off dead, but would not do it. He had no plan or intention of killing himself. It seemed to be a little worse now than a year ago. The Veteran had good impulse control and there was no adverse impact of impulsivity on motivation or mood. There was no problem with activities of daily living. The Veteran's remote memory was normal and his recent and immediate memory was mildly impaired that was the same as a year ago. The Veteran's PTSD chronic symtoms included recurrent and intrusive recollections and dreams; avoidance of stimuli associated with the trauma, and increased arousal. It was noted that the Veteran's re-experiencing symtoms related to the dreams were worse presently than a year earlier, of moderate to severe intensity and occurred approximately four times a week. He had persistent avoidance of stimuli associated with the trauma and numbing of responsiveness that was "a little worse" now than a year ago and happened on a daily basis, of moderate severity. The Veteran's persistent symtoms of increased arousal were worse over the past year, happened daily, and were of moderate severity. He was unable to get things done that he should be doing and did not treat people the way that he should that interfered with work because he was unable to get along with co-workers. The examiner found that results of psychological tests performed at the time were probably invalid. The Veteran's usual occupation was as a fireman and he was retired since 2007 because the fire chief blamed the Veteran for causing five accidents driving a fire truck that the Veteran denied. He fought the forced retirement but lost his case and was forced to retire. The Axis I diagnoses were chronic PTSD, major depression, recurrent, and cannabis dependence. The VA examiner believed that all of the Veteran's disorders were likely the result of his exposure to traumatic events in service. His depression was likely an integral part of his PTSD, and his cannabis use was likely self-medication of the PTSD symtoms. A GAF score of 55 was assigned. The VA examiner commented that there were moderate symtoms of anxiety and depression, and moderate impairment in social and occupational functioning. Further, it was noted that, since his July 2009 VA examination, the Veteran indicated that he was more depressed, did not do much anymore, and did not see anybody, other than his family. The VA examiner commented that the Veteran's PTSD-depression appeared to be causing somewhat lower levels of energy and motivation than previously. It was also noted that there was reduced reliability and productivity due to PTSD symtoms in that the Veteran was often unable to get along with others and had poor motivation that interfered with his ability to get work completed in a timely and efficient manner. According to the VA examiner, while there appeared to be some worsening of some symtoms of depression and anxiety in the past year, there, at times, also seemed to have been some improvement in the Veteran's symptomatology. Overall, the Veteran's condition appeared to be more or less the same as 13 months ago. Analysis The assigned GAF scores, with one notable exception, have been indicative of moderate disability. On one occasion the Veteran was noted to have a GAF of 50, indicative of serious impairment. This was an isolated finding, and even at that point, specific symptoms equating to those listed as examples in the 70 percent criteria were not reported. The record does not show most of the symptoms listed as examples of those warranting a 70 or 100 percent rating under 38 C.F.R. § 4.140. The Veteran was reported at one point as having difficulty controlling his impulses and reportedly grabbed is girlfriend on one occasion, but the other symptoms listed in the examples under the 70 percent criteria have not been reported. Symptoms such as a decline in personal hygiene, spatial disorientation, near-continuous panic, or other symptoms set out for the 70 percent rating are not shown. The VA examiners also reported that the Veteran was well groomed and able to maintain his personal hygiene, and his VA clinic psychiatrist repeatedly noted that the Veteran's dress and grooming were fair but never indicated that he neglected personal hygiene. The July 2009 and August 2010 VA examiners, and VA clinicians, have repeatedly described the Veteran as oriented with no evidence of psychotic thought. The Veteran has always been described as adequately groomed. His speech, as reported during examinations and clinical evaluations, suicidal ideation has been denied during the appeal period. Obsessional rituals and panic have not been reported or complained of. The Veteran has had occasional, but not continuous depression. Periods of depression have been interspersed with a euthymic mood. Although, in his March 2009 notice of disagreement, the Veteran was reported to exhibit inappropriate behavior, such was not noted by the July 2009 and August 2010 VA examiners or any VA clinician The August 2010 VA examiner also said that the Veteran's recent and immediate memory were mildly impaired that was the same as a year earlier; and such symptoms are contemplated by the current 50 percent rating. That same examiner stated that, while there appeared to be some worsening of some symtoms of depression and anxiety in the past year, there, at times also seemed to have been some improvement in the Veteran's symptomatology, and concluded that his condition was essentially unchanged in the past year. While the December 2009 VA clinic psychiatrist noted the Veteran's report of intermittent suicidal thoughts in the remote past but not recently, and the August 2010 VA examiner noted that the Veteran had suicidal thoughts, it was also noted that he had no plan or intent. Thus, occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood is not shown. As such, a rating in excess of 50 percent is not warranted at any time since the Veteran filed his current claim. In addition, there is no indication that the Veteran is unable to maintain effective relationships. He has remained in a relationship with his girlfriend for many years, has maintained contact with his adult children, and retains at least a few friends. The Veteran and his girlfriend have reported at times that he has deficiencies in the areas of work and family relations; the criteria for the 50 percent rating contemplate impairment in the areas of work and social relationships. Deficiencies in mood have also been reported, but these have been intermittent. Deficiencies in judgment and thinking have not been reported. In Claudio-Vazquez, the Federal Circuit held that the deficiencies that would warrant a 70 percent rating must be due to symptoms that are the equivalent in severity to those listed as examples in the 70 percent criteria. Such symptoms or their equivalent have not been demonstrated in this case. In sum, the weight of the evidence is against a finding that the Veteran's symptoms more closely approximate the criteria required for a rating higher than 50 percent. Moreover, the evidence is not so evenly balanced as to allow for the application of reasonable doubt. 38 U.S.C.A. Extraschedular The Board has also considered whether the Veteran's PTSD disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if 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) (2012). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). When it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service- connected disability. See Mittleider v. West, 11 Vet. App. at 182. Here the Board has considered Mittleider and attributed all potentially service-connected symtoms to his service-connected PTSD disabiity before considering if the Veteran is entitled to an extra-schedular rating. If the evidence raises the question of entitlement to an extraschedular rating, 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, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The manifestations of the Veteran's disability are depression, social isolation, mild memory impairment, combat-related sleep difficulty, poor motivation, and irritability. The rating schedule contemplates all of the psychiatric symptoms and provides a rating that is meant to compensate for all associated social and occupational impairment. Diagnostic Codes 9411. Impairment other than that involving social and occupational functioning has not been reported. Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration. Id.; see also Thun v. Peake, 22 Vet. App. at 111. In sum, a rating in excess of 50 percent for PTSD is not warranted for the Veteran's PTSD at any time he filed his current increased rating claim in January 2009. Moreover, as the preponderance of the probative medical and other evidence of record is against the claim for an increased rating for PTSD, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b). ORDER A rating in excess of 50 percent for PTSD is denied. REMAND The court has held that entitlement to a TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. at 447. Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d at 1378; see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). These requirements have been satisfied in this case. The court has held that in the case of a claim for a TDIU, the duty to assist requires that VA obtain an examination that includes an opinion on what effect the Veteran's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). There is no explicit opinion as to whether the Veteran's service-connected disability would be sufficient to preclude gainful employment. The Veteran's percentage rating does not currently meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) (2012). Nevertheless, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete a formal application for TDIU. 2. Ask the examiner who conducted the August 18, 2010 VA PTSD examination, to opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected PTSD would be sufficient to preclude him from securing and following gainful employment for which his education and occupational experience would otherwise qualify him. Reasons should be provided for all opinions rendered. (A clinical evaluation should be scheduled only if deemed necessary by the examiner.) If, after completion of the above, the Veteran's percentage ratings do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), refer the case to VA's Director of Compensation & Pension for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). 3. If any benefit on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs