Citation Nr: 1326401 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 08-19 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial evaluation in excess of 30 for posttraumatic stress disorder (PTSD) prior to January 7, 2013, and in excess of 70 percent from January 7, 2013. REPRESENTATION Appellant represented by: Robert W. Gillikin, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant, his spouse, and L.H. ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to January 1973, November 1990 to July 1991, and January 1997 to September 1997. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In January 2012, the Veteran testified before the undersigned Veterans Law Judge at a Board video conference hearing. A transcript of the hearing is of record. This matter was previously before the Board in July 2012 at which time the issue was remanded to afford the Veteran a new VA psychiatric examination and to update any pertinent outstanding treatment records. The record shows that the Veteran was afforded an adequate psychiatric examination in January 2013, and additional pertinent VA treatment records have been added to the Veteran's virtual VA e folder and have been reviewed. Thus, there has been substantial compliance with the Board's July 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In June 2013, the RO increased the Veteran's rating for PTSD to 70 percent disabling, effective January 7, 2013. The matter is once again before the Board. FINDINGS OF FACT 1. Prior to January 7, 2013, the Veteran's PTSD symptoms more nearly approximate occupational and social impairment with reduced reliability and productivity, including difficulty in establishing and maintaining effective relationships. 2. From January 7, 2013, symptoms of the Veteran's PTSD have not approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the appellant's favor, prior to January 7, 2013, the criteria for an initial evaluation, of 50 percent, but no more, for the Veteran's PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. From January 7, 2013, the criteria for an initial evaluation in excess of 70 percent for the Veteran's PTSD are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Since the appellate issue in this appeal (entitlement to assignment of a higher initial rating) is a downstream issue from that of service connection (for which a VCAA letter was duly sent in March 2008), another VCAA notice is not required. VAOPGCPREC 8-2003. The Board finds that all necessary assistance has been provided to the appellant and the RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate his claim for increased ratings for PTSD. VA has obtained identified medical evidence and afforded the appellant VA examinations. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination reports on file contain sufficient findings with which to properly evaluate the appellant's service-connected tinea pedis and are thus deemed adequate for rating purposes. See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination reports are predicated on a physical examination and contain the findings necessary to evaluate the appellant's PTSD under the applicable rating criteria. On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). II. Analysis Facts VA outpatient treatment records include records dated in September and November 2009 noting that the Veteran declined treatment for his chronic PTSD. The September 2009 record notes that the Veteran had no suicidal or homicidal ideation at that time. At a VA psychiatric examination in February 2011, the Veteran reported being married to his wife for 41 years, but admitted that they had had marital difficulties in the past due, in part, to his irritability, alcohol use and isolation/social withdrawal. He reported frequent anxiety and depressed mood. He further reported getting along with his two children and four grandchildren, but said he tends to isolate if a number of people come over. He was noted to have minimal social interaction and had one friend who was older than he was. He said he had worked 25 years as a police officer before taking early retirement in 2003. He reported that he showed up regularly and did his job adequately and simply felt it was time to retire when he did. He continues to work part-time with the police department performing court room security two times a week. The examiner reported that the Veteran was doing his job adequately and seemed to do better when he was busy. On examination the Veteran's mood was dysphoric with an underlying irritability, though he was pleasant, cooperative and polite with the examiner. He was slightly tearful on occasion. His affect was restricted, but there was no impairment of thought process or communication and no delusions or hallucinations. Eye contact and behavior were appropriate. The Veteran reported having periodic suicidal thoughts, but denied any current suicidal thoughts or intent to act on such thoughts knowing that it would hurt his family. He had adequate personal hygiene and basic activities of living and was oriented. His memory was intact. There was no obsessive or compulsive behavior. Speech was within normal limits and there were no panic attacks. He had adequate impulse control and concentration, and denied severe anger outbursts involving violence or destruction of objects. He reported poor sleep ever since service. He was diagnosed as having PTSD and was assigned a Global Assessment of Functioning (GAF) score of 53. The examiner said that the Veteran seemed to function adequately in the workplace. A February 2011 VA joint examination report notes that the Veteran had been employed part time over the past five to ten years and had not lost any time from work. The report states that he had to take early retirement in 2003 due to his right shoulder condition because he could no longer handle a firearm. A March 2011 VA outpatient record notes that the Veteran had chronic PTSD and had facial tics and twitching. The report shows that he declined mental health treatment at that time, but would consider it in the future. He was noted to be taking Zoloft. In an April 2011 rating decision, the RO granted service connection for PTSD and assigned a 30 percent rating effective in February 2008. The Veteran reported at a November 2011 VA clinic visit that his depression and anxiety had increased over the summer. He was noted to be taking Zoloft. He said he was retired, but volunteered 6 to 12 hours a week. He said he liked to stay busy around the house and spending time with his bulldog. He said he attempted psychiatric treatment in 2006 and was not sure if he was presently interested in psychotherapy because he did not believe it would help his symptoms after 20 years. He went on to express his willingness to try therapy. He was to be referred to the Center for Traumatic Stress. A Center for Traumatic Stress Intake record, dated in December 2011, contains a GAF score of 43 and notes that the Veteran had no friends, had passive suicidal ideation, and severe alcohol abuse. A VA psychiatry attending note in December 2011 reflects a GAF score of 55. The Veteran testified at a Board video conference hearing in January 2012 that he has been suffering from reduced reliability and productivity and from symptoms of panic attacks more than once a week. He also testified that he has impairment of long and short-term memory, forgetting to complete tasks, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships to the point that he at times contemplates suicide. He said he felt that the last VA examiner did not properly evaluate the severity of his PTSD. A registered nurse, L.H., testified on the Veteran's behalf by reporting that he continued to have the PTSD symptoms already of record in addition to panic and anxiety attacks four to five times a week or more. She also said he had long and short-terms memory problems, was drinking more, had sleep difficulty, night sweats and does not enjoy being around his children and grandchildren. She added that he had no motivation to do anything and his mood changed quickly at work. The Veteran testified that his worse PTSD symptoms were his lack of motivation and his nerves. His spouse testified that his worse symptom was not enjoying spending time with his family or friends. On the day of the hearing the Veteran's representative submitted a letter dated in January 2011 from L.H., the registered nurse, that essentially contains the content of her Board hearing testimony. VA outpatient records show that the Veteran participated in a Safety Seeking program from January 2012 to June 2012. The program provided evidence-based treatment for substance abuse and PTSD. It included individual psychotherapy. These records show that the Veteran had minimal risk of self harm, suicide or harm to others. A June 2012 VA outpatient record reflects a GAF score of 55. Another record in June 2012 assesses the Veteran as having PTSD with no suicidal or homicidal ideation. It notes that the Veteran was being managed in the mental health center and was doing well. VA mental health findings in September 2012 show that the Veteran was cooperative and had a sad mood and an affect that was down. He had good grooming and his speech was clear with appropriate thought content. His immediate and remote memory was grossly intact and reality testing was within normal limits. He had no hallucinations or delusions and had good insight and judgment. Findings in October 2012 were the same except that the Veteran's mood was eythymic and his affect was happy. VA outpatient records also show that the Veteran participated in an "ACT grad group" which was a 12 week program that ran from November 2012 to March 2013. This program consisted of weekly 75 minute sessions for treatment of trauma-related symptoms and struggles with substance abuse. Findings in January 2013 revealed that the Veteran was cooperative with a mood that was sad and irritable and an affect that was down. He had good grooming and his speech was clear with appropriate thought content. His immediate and remote memory was grossly intact and reality testing was within normal limits. He had no hallucinations or delusions and had good insight and judgment. These records reflect GAF scores of 60. Results of a VA PTSD examination in January 2013 revealed that the Veteran had PTSD and major depressive disorder and that the symptoms attributable to his PTSD included intrusive thoughts, distressing dreams/nightmares, flashbacks, psychological distress to cues, avoidance thoughts, feelings, conversations related to trauma, avoidance of activities, diminished interest/participation in activities, restricted range of affect, sense of foreshortened future, irritability and anger, hypervigilance and exaggerated startle response. Symptoms that overlapped with PTSD and depression included sleep disturbance and difficulty concentrating. The Veteran was found to have occupational and social impairment with reduced reliability and productivity. The examiner reported that the Veteran had accepted early retirement from a Sherriff's department in 2011 after 25 years. He said he was encouraged to take early retirement due to irritability/anger, panic attacks, fatigue, and difficulty concentrating. He also reported some difficulty getting along with his co-workers. He said he was passed over for several work opportunities because of his PTSD and depression. He said he still worked 6 hours a week for the Sheriff's office and drops off people doing community service and has limited interaction with people. He asserted that his symptoms had worsened over the last two years and would significantly impede his ability to secure and maintain full-time employment. Socially, the Veteran had been married for 43 years and his wife reported significant marital discord due to the Veteran's PTSD. The Veteran reported a "so-so" relationship with his two adult children and four grandchildren. He said he had one friend that he met in PTSD treatment. The examiner reported that the Veteran had the following PTSD symptoms: depressed mood, anxiety, suspiciousness, panic attacks more than once a week, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. He assigned the Veteran a GAF score of 51. A March 2013 record shows that the Veteran had night sweats, bad dreams and anxiety attacks when sleeping. He described anxiety attacks as lasting seven to ten minutes and involving shortness of breath, palpitations and tremors, and moodiness. He said he was quite satisfied with the response of PTSD to sertraline and Trazadone. He also said that Zoloft was working. He reported that he was able to cope with PTSD and it didn't affect his activities of daily living. He denied suicidal or homicidal ideation. Findings in March 2013 showed that the Veteran was cooperative. He had some motor tics mainly eye blinking and some hand jerking movements. His mood was good, but a little anxious. His affect was mood congruent and he had normal speech. He had no delusions and no suicidal or homicidal ideation. He was oriented times three and had good insight and judgment. He was assigned a GAF score of 67. Law and Discussion Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (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). Where, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here the disability has not significantly changed during the pertinent periods in question and uniform ratings are warranted for each period. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130, Diagnostic Code 9411, is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of the Veteran's occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). Id. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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. A 70 percent rating is assigned 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent schedular rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relative, own occupation or own name. The GAF is a scale reflecting the psychological, social and occupational functioning under a hypothetical continuum of mental health-illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). According to the DSM-IV, a GAF score between 31 and 40 is reflective of some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed man avoids friends, neglects family, and is unable to work); a GAF between 41 and 50 is reflective of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting), or any serious impairment of social, occupational, or school functioning (no friends, unable to keep a job); a GAF between 51 and 60 is indicative of 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 coworkers); a GAF between 61 and 70 is indicative of some mild symptoms (e.g. depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships. A. Evaluation of PTSD rated 30 percent disabling prior to January 7, 2013 The Board finds that the Veteran's psychiatric disability falls somewhere between a 30 and 50 percent rating prior to January 7, 2013, under the General Rating Formula for Mental Disorders, but more nearly approximates the criteria for a 50 percent rating. 38 C.F.R. § 4.7. In specific regard to the criteria for a 50 percent rating, the Veteran is shown to have symptoms that mirror disturbance of motivation and mood, flattened affect, panic attacks more than once a week, and difficulty in establishing and maintaining effective relationships, more so socially. In this regard, during the period prior to January 7, 2013, the Veteran's mood has been variously described as sad, irritable and depressed. In addition, the February 2011 VA examiner described him as having a restricted affect. Although this examiner went on to find that the Veteran did not have panic attacks on examination, the Veteran and a registered nurse subsequently testified, in January 2012, that he experiences panic/anxiety attacks four to five times a week. The Veteran asserted that the examiner rushed through the examination and never asked him about panic attacks. The Veteran is also shown to have chronic sleep difficulty. In terms of social impairment, the evidence is replete with notations that the Veteran has one to no friends, tends to isolate socially and does not enjoy being around his children and grandchildren. As for occupational impairment, the February 2011 VA examiner reported that the Veteran "seemed to function adequately in the workplace". This seems accurate by all accounts, but it is important to remember that the Veteran retired from full time employment in 2003 and currently works approximately six hours a week providing security in a court room. The fact that he is able to maintain work in this limited capacity does not accurately depict his ability to function with his PTSD symptoms in a full time capacity. The reason for his retirement in 2003 is not clear. On the one hand, he reported at the January 2013 VA examination that he was encouraged to take early retirement due to irritability/anger, panic attacks, fatigue and concentration difficulty in 2003; however, a February 2011 VA joint examination report notes that he had to take early retirement due to his right shoulder condition because he could no longer handle a firearm. Turning to his GAF scores as a reflection of his social and occupational functioning, these scores variously range from as low as 43 (in December 2011) reflective of serious symptoms, to scores of 53 (in February 2011), 55 (also in December 2011) and 60 (in 2012), reflective of moderate symptoms. The Board finds these scores consistent with a 50 percent rating. In terms of memory impairment, the evidence is inconsistent. That is, both the Veteran and a registered nurse testified in January 2012 that he has short term and long term memory impairment. However, the February 2011 VA examiner found that the Veteran's memory was intact, and his immediate and remote memory was noted to be grossly intact at a September 2012 mental health outpatient visit. Also, there is no evidence that he has difficulty in understanding complex commands or has impaired abstract thinking. In short, although the evidence during this period does not persuasively show all of the symptoms listed under Code 9411 for a 50 percent rating, it is not required that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. See 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, based on the foregoing discussion of the Veteran's symptoms and by resolving all reasonable doubt in his favor, the Board finds that the Veteran's service-connected psychiatric disability picture more closely approximates the criteria for a 50 percent rating than a 30 percent rating. 38 C.F.R. §§ 4.3, 4.7. This is based primarily on the Veteran's anxiety symptoms, his depressed mood, irritability, social isolation, lack of motivation and sleep disturbance. That is, the evidence shows occupational and social impairment with reduced reliability and productivity. Id. A higher than 50 percent rating, to 70 percent, is not warranted for the period prior to January 7, 2013. While records at times note that the Veteran has had thoughts of suicide off and on, he repeatedly denied any plans or attempts, explaining that it would negatively affect his family. Moreover, he does not show any other criteria for a 70 percent rating. That is, he has not been shown to have 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; spatial disorientation; neglect of personal appearance and hygiene; or an inability to establish and maintain effective relationships. In regard to the latter criterion, the Veteran has been married to his spouse for over 40 years. B. Evaluation of PTSD rated 70 percent disabling effective January 7, 2013 Consideration of a total, 100 percent, schedular rating for the Veteran's PTSD has been considered from January 7, 2013. However, the Veteran's actual symptoms as described in the evidence above do not meet the criteria for a 100 percent rating. In this regard, the evidence does not show total occupational and social impairment or that the Veteran has any of the symptoms listed under the criteria for a 100 percent rating for total occupational and social impairment. Specifically, the evidence consistently shows that the Veteran does not have symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior or persistent danger of hurting self or others. At the January 2013 VA examination, the Veteran reported that he was working part time (6 hours/week) for the Sheriff's office. He said he drops off people doing community service and has limited interaction with people. In terms of relationships, while there is obvious impairment in the Veteran's occupational and social relationships, he remains married to his wife of over 40 years and described at the January 2013 examination a "so-so" relationship with his two adult children and four grandchildren. He also reported in January 2013 that he has one friend whom he met in PTSD treatment. He was further noted in January 2013 to be generally oriented. Thus, his ability to continue working and maintain some type of relationship with his family as well as one friend, and perform activities of daily living, reflect that his symptoms do not more nearly approximate the total occupational and social impairment required for a 100 percent rating. In terms of activities of daily living, a March 2013 VA outpatient record reflects the Veteran's report that he was able to cope with his PTSD and it didn't affect his activities of daily living. More importantly, neither the examination results nor the particular facts support a finding that approximates total impairment. The Veteran's GAF score of 51 at the January 2013 VA examination has been considered and is reflective of moderate symptoms. Accordingly, the preponderance of the evidence does not support a higher than 70 percent rating for the Veteran's PTSD for the period from January 7, 2013. As such, the benefit-of-the-doubt doctrine is not for application and the claim for a rating higher than 70 percent for this period must be denied. 38 U.S.C.A. § 5107. The only remaining issue is whether referral for extraschedular consideration is warranted. Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F. 3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's PTSD are fully contemplated by the applicable rating criteria. The Board's analysis above reflects that the symptoms, effects, and overall disability picture from the Veteran's PTSD is contemplated by the 50 and 70 percent ratings, which take account of both the individual symptoms and the overall impairment caused by the PTSD. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required, and referral for consideration of an extraschedular rating for PTSD is not warranted. 38 C.F.R. § 3.321(b)(1). In adjudicating the current appeal for a higher evaluation, the Board has not overlooked the Court's holding in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). However, the Board finds that Rice is not applicable to the current appeal because the Veteran is presently employed in a part time capacity. ORDER An initial rating, to 50 percent, for PTSD prior to January 7, 2013, is granted, subject to the criteria applicable to the payment of monetary benefits. An initial rating in excess of 70 percent for PTSD from January 7, 2013, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs