Citation Nr: 1328307 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 11-04 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant-Veteran ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty in the United States Marines Corp from December 1959 to December 1963 and in the Air Force from January 1968 to June 1969. He also served in the Air National Guard from March 1984 to December 1994. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for PTSD with an evaluation of 50 percent retroactively effective from May 15, 2009, the date of receipt of the Veteran's claim for this condition. He appealed for a higher initial rating for this disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others; this change in rating, over time, while compensate the Veteran for this variance in the severity of the disability). Regarding the remaining claim of entitlement to a TDIU, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. A claim for a TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). See also Hurd v. West, 13 Vet. App. 449 (2000) (indicating that a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased compensation claims apply to a TDIU claim); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (a TDIU claim is informally raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest possible rating for that disability; and (3) submits evidence of unemployability); 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). Similarly, in Mayhue v. Shinseki, 24 Vet. App. 273 (2011), the Court held it was inappropriate to have treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his underlying disability, which in that case also was PTSD. Citing Rice, the Mayhue Court reasoned that a request for a TDIU is not a separate claim for benefits, rather, an attempt to obtain an appropriate rating for a disability or disabilities. Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying claim. But there must be cogent evidence of unemployability in the record. See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Thus, under Rice and this line of precedent cases, the Board has authority to assume jurisdiction over this derivative TDIU claim inasmuch as it is predicated, at least in part, on the service-connected disability for which the Veteran is requesting a higher rating in this appeal. The RO or Appeals Management Center (AMC), though the Agency of Original Jurisdiction (AOJ), has not had opportunity to consider whether the Veteran is additionally entitled to a TDIU, and it would be potentially prejudicial to him for the Board to consider this additional issue in the first instance. Bernard v. Brown, 4 Vet. App. 384 (1993); Godfrey v. Brown, 7 Vet. App. 398 (1995). Moreover, if the Board determines the derivative TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim, although this does not preclude the Board from going ahead and deciding the claim that formed the basis of the derivative TDIU claim. See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). Aside from his PTSD, the Veteran's other service-connected disability is Type II Diabetes Mellitus, rated as 20-percent disabling. And as his TDIU claim therefore necessarily requires consideration of this other service-connected disability not considered in this decision, as well as objective evidence that his service- connected disabilities alone "are of sufficient severity to produce unemployability," see Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993), the Board is remanding this derivative TDIU claim to the RO via the AMC in Washington, DC, for the necessary initial development and consideration. In July 2011, in support of his claim for a higher initial rating for his PTSD, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). A transcript of the hearing is of record. During the hearing the Veteran submitted additional evidence in support of his claim for a higher initial rating for his PTSD, and he waived his right to have the RO, as the Agency of Original Jurisdiction (AOJ), initially consider this additional evidence, preferring instead to have the Board do so in the first instance. 38 U.S.C.A. § 20.1304(c) (2012). He alleged this additional evidence showed his PTSD is more severely disabling than initially rated, so reason to increase his initial rating to a higher level. And it is partly on the basis of this additional evidence that the Board is indeed finding that he is entitled to a higher initial rating for this condition. Also in the course of the hearing testimony, the Veteran and his representative indicated the Veteran was retired because he was "riffed" from his job. But the representative maintained the Veteran's PTSD precluded him from returning to work, even if permitted to, hence, the reason the Board is assuming jurisdiction of the derivative TDIU claim. The representative also cited complications of the Veteran's other service connected disability - his Type II Diabetes Mellitus - as reason for expediting consideration of this appeal, also however realizing he was not quite of sufficient age to otherwise warrant advancing his appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's PTSD causes occupational and social impairment with deficiencies in work, social, family relations, judgment, thinking, and mood, due to such symptoms as near- constant depression, frequent panic attacks, nightmares, flashbacks, and intrusive thoughts, isolative behavior, impaired impulse control and impaired concentration. CONCLUSION OF LAW The criteria are met for a higher initial rating of 70 percent for the PTSD. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.126-4.130, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants notice and assistance upon receipt of a complete or substantially complete application for benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). To this end, VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002). These VCAA notice requirements apply to all elements of a service-connection claim, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The claim at issue, however, arises from the initial rating the RO assigned after granting service connection for this disability. In this circumstance, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) and lower Veterans Court (CAVC) have held that, where the underlying claim for service connection has been granted and there is disagreement regarding a "downstream" issue, such as the initial rating, the claim as it arose in its initial context has been substantiated, indeed proven, so the purpose of § 5103(a) notice served, and there is no need to provide additional VCAA notice concerning the "downstream" rating issue. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue a statement of the case (SOC) if the disagreement concerning the "downstream" issue is not resolved. And since the RO provided the Veteran this required SOC in January 2011 citing the statutes and regulations governing the assignment of disability ratings (including, as here, an initial disability rating) and discussing the reasons and bases for not assigning a higher initial rating, he has received all required notice concerning his claim. There is no pleading or allegation that he has not received all required notice concerning his claim. And as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing a VCAA notice error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Thus, absent this pleading or showing, the Board finds that the duty to notify him concerning his claim has been satisfied. VA also fulfilled its duty to assist him by obtaining all potentially relevant evidence in support of his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained all pertinent records that he and his representative identified as possibly relevant to this claim. These records include the service treatment records (STRs) and post-service VA and private treatment records. 38 C.F.R. § 3.159(c)(1) and (c)(2). See also Lind v. Principi, 3 Vet. App. 493, 494 (1992); Marciniak v. Brown, 10 Vet. App. 198, 204 (1997); and Murincsak v. Derwinski, 2 Vet.App. 363 (1992). In addition, he was provided a VA compensation examination assessing the severity of his PTSD. The findings from the examination, especially when considered along with the other relevant evidence in the file - including the additional evidence submitted during the more recent July 2011 Travel Board hearing - provide the information needed to properly rate this disability. The Board is not obligated to remand a claim merely because of the passage of time since an otherwise adequate VA examination, so not just as a matter of course, especially when, as here, additional evidence since has been submitted during a hearing (so even since the examination in question) providing all necessary information and, in turn, allowing the Board to immediately adjudicate the claim. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Given all that has occurred, at least as concerning this claim being readjudicated in this decision, it is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate this claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any meaningful or useful purpose or result in any significant benefit to the Veteran). Regarding the hearing he had before the Board in July 2011, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge chairing a hearing fulfill two duties to comply with this VA regulation, which consist of: (1) fully explaining the issue(s) and (2) suggesting the submission of evidence that may have been overlooked and that might be advantageous to the claimant's position. Here, during the July 2011 Travel Board hearing, the undersigned Veterans Law Judge identified the issue on appeal and discussed with the Veteran and his representative the ways they could show the Veteran's disability was more severe than initially rated. Information was obtained as well to clarify the specific bases of his arguments, and to in turn allow him to present evidence in a way tending to support or substantiate his claim. The presiding Veterans Law Judge's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim and to suggest the submission of evidence when such evidence is missing or has been overlooked therefore has been satisfied. See id. at 496-97. The Veteran has not alleged there were any procedural or other deficiencies in the conducting of that hearing, according to § 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. The Board also has not identified any hearing deficiency. In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly explain the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication the Veteran had any additional information to submit. In this case, the Board finds no deficiency in that Travel Board hearing or in development of the claim. See id. Under the circumstances of this case, then, the record has been fully developed, and it is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate his claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The Board, therefore, may proceed with its adjudication of this claim. Merits of the Claim Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if there have been occasions since the effective date of the award when the disability has had differing degrees of severity, then the Board must "stage" the rating to compensate the Veteran for this variance. See Fenderson, 12 Vet. App. at 125-26. Thus, VA's determination of the "present level of disability" may result in concluding the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that Veteran had disability "at some point during the processing of his claim," satisfied service-connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). Accordingly, it has been held that a staged rating is appropriate for an increased-rating claim, including an initial-rating claim, when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or here, her] earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). Mental disorders are evaluated under a General Rating Formula found at 38 C.F.R. § 4.130. In addition, the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed in 38 C.F.R. § 4.130. When evaluating a mental disorder, the evaluation must be based on all the evidence of record bearing on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). According to the General Rating Formula for Mental Disorders found at 38 C.F.R. § 4.130, the Veteran's existing 50 percent initial rating requires 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; and, difficulty in establishing and maintaining effective work and social relationships. Id. The next higher 70 percent rating requires 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); and inability to establish and maintain effective relationships. Id. The next higher, and maximum, 100 percent rating requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also 38 C.F.R. § 4.130. In determining whether the Veteran meets the criteria for an increased rating, the Board must consider whether he has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). In evaluating the evidence, the Board also has considered Global Assessment of Functioning (GAF) scores that evaluating clinicians have assigned. A GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence bearing on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95. The higher the score, the higher the overall functioning of the individual is. According to the DSM-IV, a score of 41 to 50 represents 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 score of 51-60 represents "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). A GAF score in the higher 61-70 range is indicative of some "mild" symptoms or some difficulty in social or occupational functioning, but generally functioning pretty well and has some meaningful interpersonal relationships. Id. Turning now to the relevant facts of this particular case, the Veteran was afforded a VA compensation examination in August 2009. The examiner noted that the claims file was reviewed. The Veteran stated that he had been married to the same woman for approximately 45 years and that they had three grown children, one of whom was living with them at that time along with their grandson. He stated he had a good relationship with his wife, children, and grandchildren. He also reported that he was friends with his neighbor who was also ex-military and still had friends from the National Guard that he talked to every one to two months. He noted his hobbies were fishing and doing a little woodworking around the house. The examiner noted that, despite all of that, the Veteran reported some disconnection from family and friends. He stated he got along with everyone fine, but tried to limit his time with them because of trust issues and irritability problems. He also reported impaired productivity due to problems of motivation. He stated it was hard to get going and hard to maintain his interest. He also acknowledged his history of assaultiveness and violence, including a physical confrontation with a stranger on the freeway, a verbal confrontation with a stranger over a problem on a boat ramp, and verbal confrontations almost daily with a local company's employees who test drive cars up and down his street. On objective mental status evaluation, the Veteran was casually dressed with a friendly, if guarded, attitude toward the examiner. His affect was appropriate and his mood good. He displayed an average intelligence with a short attention span. The examiner observed the Veteran was disoriented as to the time (he was off by 1 hour and 25 minutes). He additionally reported sleep impairment. He noted that he had problems both falling asleep and staying asleep. He was often startled awake following a nightmare. He had sleep apnea problems as well. It was noted he had no panic attacks or inappropriate behavior. He reported no presence of homicidal or suicidal thoughts. He had fair impulse control, but he did express problems with outbursts of anger and episodes of violence - including road rage. He noted he never thinks of consequences during these times. The examiner noted that the Veteran had recurrent, distressing recollections of traumatic events and that he avoided activities that would remind him of those events. He displayed markedly diminished interest in significant activities and detachment or estrangement from others. The examiner further noted that the Veteran's most significant symptoms were in routine sleep difficulty, pervasive irritability that sometimes lead to aggression, chronic concentration difficulty, and marked startle response to loud noise. Psychometric assessment scores indicated severe depressive symptoms, although on interview the examiner's impression was of mild-to-moderate PTSD. While the examiner did not find that the Veteran had total occupational and social impairment, she did note that he had deficiencies in judgment, family relations, and mood. She explained that he distanced himself from family and friends in order to avoid confrontation, making him feel disconnected. He had chronic anxiety, depressive mood states, feelings of worthlessness, fatigue, and social isolation. He does "busywork" and makes other anxious efforts to avoid trauma reminders and negative emotions. The Axis I diagnosis was PTSD, and a GAF score of 45 was assigned. According to the DSM-IV, a GAF score of only 45 indicates the Veteran has "serious" symptoms or "serious" social or occupational impairment. As he attested to during his more recent Travel Board hearing, the Veteran was not satisfied with that VA compensation examination, believing it to have been an inaccurate depiction of the extent and severity of his symptoms. So he sought and obtained a private medical opinion. In an April 2010 psychological assessment report, a private psychologist stated the Veteran's problems with his PTSD symptoms included constant problems with his supervisors and co-workers. He was always irritable. He reported that he was always nervous and hated to be idle. He further reported sleep impairment including nightmares and sleep apnea. He stated that war news agitated him greatly as did war movies. He had little social life because he could not be around people for very long before becoming agitated. He used to participate in volunteer activities but had to stop because people agitated him too much. He could not stand crowds and avoided them whenever he could. This commenting private psychologist noted the Veteran reported episodes of depression with occasional suicidal ideation. Thinking of his family made the suicide ideas go away. He had flashbacks with certain stimuli, as well as intrusive thoughts. He had road rage and had multiple confrontations with strangers. He was hypervigilant and had occasional panic attacks. The Axis I diagnosis was PTSD, and the GAF score was 48, so nearly the same score, and definitely in the same range, as the score the VA compensation examiner had assigned. This commenting private psychologist affirmed the Veteran had some very serious symptoms. A supplemental opinion was obtained in June 2011 from this same private psychologist. She recounted that the Veteran's symptoms included combat nightmares that are triggered by external stimuli. He has dreams of dead bodies and sometimes thinks he can smell their wretched odor. Loud noises trigger flashbacks and he has very vivid dreams. He reported often getting irritated at home and resultantly having to isolate himself in order to calm down. He has had road rage incidents and has an exaggerated startle response to loud noises. He avoids spending too much time at family functions because he becomes irritated being around people. Contrary to what was noted during his VA examination, he has panic attacks as often as two to three times a week. His panic attacks involve shortness of breath, feeling highly anxious, and feeling cold flashes all over his body. He reported feeling sad, blue, hopeless, and fatigued most of the time, noting that he sometimes has suicidal ideation and even has held a gun to his head. He feels like life will never get any better. This commenting private psychologist observed concentration problems and that the Veteran had lost interest in doing things that used to be important to him. He also had started neglecting his grooming and his wife has to nag him about showering and shaving. Finally, he reportedly can no longer work, even as a volunteer, because he cannot deal with people. His GAF score again was 45, so again in the same range or identical to his prior scores, and this commenting private psychologist explained the Veteran had major impairment in interpersonal, social, and vocational functioning. This evidence, especially when considered collectively, indicates the Veteran has been entitled to a higher 70 percent initial rating since the filing of his underlying claim for service connection for this disability on May 29, 2007, because he has shown occupational and social impairment with deficiencies in mood, work, family relations, thinking, and judgment. Specifically, he describes intense feelings of depression and anger on a daily basis. He has intrusive thoughts and hypervigilance. He does not sleep well. These symptoms contribute to his irritability, poor concentration, and avoidance of social functions. He needs to be reminded to bathe and maintain his hygiene at times. He has no patience for people and has had several incidents of road rage and outbursts of anger with strangers that have become violent. He isolates himself from others, including his family and friends, because he is easily agitated and does not want to lose his temper with people. His inability to interact with others makes it difficult or impossible for him to work, even on a volunteer basis. He has had some suicidal ideation, as evidenced by him at least once holding a gun to his head, albeit for the most part no active plan or intent, noting that thinking about his family and presumably the effect it will have on them helps to keep his thoughts of suicide at bay. Finally, he reported having panic attacks as often as two to three times a week. But while the Board finds that the Veteran is entitled to a higher 70 percent initial rating given the extent and severity of his social and occupational impairment, he has not shown entitlement to an even higher 100 percent schedular rating for his disability (that is, if considering the extent of his social and occupational impairment, not just his occupational impairment that is forming the basis of his derivative TDIU claim). In this regard the Board sees that he has not exhibited gross impairment in his thought process or communication, there has been no evidence of persistent delusions or hallucinations, and no evidence of memory loss for names of close relatives, his occupation (or, here, prior occupation), or name. While he has acknowledged suffering from road rage and other outbursts of rage, there has been no suggestion of grossly inappropriate behavior or persistent danger of hurting himself or others - as opposed to occasionally. During his August 2009 VA compensation examination it was noted that he was disoriented to the time, but this is relative and he was less than 2 hours off the correct time and there has been no other indication that he has orientation issues. The April 2010 and June 2011 private psychological assessment reports noted that he had some suicidal ideation, but there was no suggestion he is a persistent danger to himself or others and, indeed, he stated he always thinks of his family and the consequences of him killing himself and puts suicidal thoughts out of his head because of that. While there is evidence that he suffers from road rage and that he has had violent confrontations in the past, he seems aware of his anger issues and actively controls them by avoiding situations where he could be agitated. There were statements during his June 2011 private psychological assessment regarding his occasional neglect of his appearance, but there is no evidence that he is unable to perform activities of daily living (ADLs) - albeit often with the urging of his longtime wife. Accordingly, applying the benefit-of-the-doubt doctrine, the Board finds he is entitled to a higher 70 percent initial rating for his PTSD, though no greater rating. 38 C.F.R. §§ 4.3, 4.7. Extra-schedular Consideration In evaluating this claim for a higher initial rating for the Veteran's PTSD, the Board also has considered whether he is entitled to a greater level of compensation on an extra- schedular basis. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extra-schedular 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." The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extra-schedular rating, the threshold factor for extra- schedular 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. See 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"). When the Rating Schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that referral for extra-schedular consideration is not warranted in this particular case at hand. The Veteran's reported symptoms (i.e., near-constant depression, panic attacks, rage issues, and isolating behavior) are contemplated by the rating criteria. There are no symptoms left uncompensated or unaccounted for in his assigned schedular rating, especially by the higher 70 percent rating he is receiving in this decision. The evidence, then, does not indicate his PTSD presents "such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (2012). The fact that circumstances specific to a particular claimant may cause the effects of a service-connected disability to be more profound in that claimant's case does not ordinarily provide a basis for extra-schedular consideration. Id. Rather, the impairment must be so unusual as to be unanticipated by the rating criteria. See id. Because the Board finds that the symptoms caused by the Veteran's PTSD are contemplated by the rating criteria, there is no need to consider whether it causes marked interference with employment, meaning above and beyond that contemplated by the assigned schedular rating, also recognizing that a TDIU is being remanded in this decision, or requires frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER A higher 70 percent initial rating is granted for the PTSD, subject to the statutes and regulations governing the payment of VA compensation. REMAND The August 2009 VA examination and the April 2010 and June 2011 private psychological examinations noted the Veteran was unable to get along with people and, therefore, unable to work. And while, according to his July 2011 Travel Board hearing testimony, he admittedly was not let go from his former job necessarily because of his PTSD (rather, simply "riffed"), he and his representative nonetheless argued that he would be unable to get another job given his inability to deal with people for any length of time. So they believe his PTSD, especially when considered along with his other service-connected disability of Type II Diabetes, precludes him from returning to a job that could be considered substantially gainful versus just marginal in comparison. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 and 4.19. Therefore, according to the holding in Rice and its progeny, they have raised the additional issue of his entitlement to a TDIU. This derivative claim requires further development before being decided, however. A TDIU requires impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the claimant's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by disabilities that are not service connected. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340 , 3.341, 4.16, 4.18, 4.19 (2012). In making this determination, then, the critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993). If there is only one service-connected disability, it must be ratable at 60 percent or more. Whereas, if there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. But disabilities resulting from common etiology or single accident, among others, will be considered as one disability in determining whether these threshold minimum rating requirements are met. 38 C.F.R. § 4.16(a). Now, as a result of this decision, the Veteran has a 70 percent rating for his PTSD and a 20 percent rating for his Type II Diabetes Mellitus. Therefore, he satisfies the threshold minimum rating requirements of 38 C.F.R. § 4.16(a) for consideration of a TDIU - that is, without having to resort to the special extra-schedular provisions of 38 C.F.R. § 4.16(b). So the only remaining consideration is whether his service-connected disabilities render him unable to obtain and maintain substantially gainful employment as he and his representative allege. In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there is a need to discuss whether the standard delineated in the controlling regulations is an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment. In a pertinent precedent decision, VA's General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. As further observed by VA's General Counsel, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75- 91. A claim for a TDIU "presupposes that the rating for the [service-connected] condition is less than 100 [percent], and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). To reiterate, in evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but as mentioned not to his age or impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. See also Hodges v. Brown, 5 Vet.App. 375 (1993); Blackburn v. Brown, 4 Vet.App. 395 (1993); and Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992). 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." See, too, Moore v. Derwinski, 1 Vet.App. 356, 358 (1991). 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 noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore (Robert) v. Derwinski, 1 Vet.App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). As the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). That said, as already alluded to, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability, especially when the Veteran has a schedular rating in the higher end of the rating spectrum. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. A VA compensation examiner therefore needs to reassess the severity of the Veteran's service-connected disabilities specifically in relation to his ability to obtain and maintain substantially gainful employment versus just what would be considered marginal employment in comparison. If it is determined he is indeed incapable of obtaining or retaining substantially gainful employment because of the severity of these service-connected disabilities, then the examiner should indicate the approximate date of onset of this total occupational impairment. Accordingly, this derivative TDIU claim is REMANDED for the following additional development and consideration: 1. Send the Veteran a VCAA notice letter apprising him of the type of evidence and information needed to substantiate his derivative claim for a TDIU, including apprising him of his and VA's respective responsibilities in obtaining this supporting evidence. Ask him whether he has received any additional (more recent) evaluation or treatment for his service-connected disabilities. If he has, and the records are not already in the file, then obtain them with his cooperation, including all records of evaluation or treatment he has received from VA for these service- connected disabilities since November 2010. If attempts to obtain any additionally identified records are unsuccessful, and it is determined that further attempts to obtain them would be futile, then make an express declaration to this effect and notify him of this in accordance with 38 C.F.R. § 3.159(c) and (e). 2. Upon receipt of all additional evidence, schedule an appropriate VA compensation examination to reassess the severity of the service-connected disabilities - including especially determining their impact, either individually or in combination, on the Veteran's employability. All diagnostic testing and evaluation needed to make these determinations should be performed, and all clinical findings reported in detail. After examining the Veteran and reviewing the file, including a complete copy of this remand, the examiner is asked to specifically address the following: a. Identify and describe all symptoms and manifestations attributable to the service-connected PTSD and Type II Diabetes Mellitus. b. Assess the severity of these service- connected disabilities on the Veteran's ability to obtain and maintain substantially gainful employment versus just what would be considered marginal employment in comparison, given his level of education, prior work experience and training, but not any impact on account of his age or disabilities that are not service connected. If it is determined he is indeed incapable of obtaining or retaining substantially gainful employment because of the severity of these service-connected disabilities, then the examiner is additionally asked to indicate the approximate date of onset of this total occupational impairment. In doing so, the examiner is asked to reconcile his/her opinion with the other evidence of record. It is imperative the examiner discuss the rationale of the opinions in response to these questions, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 3. Then adjudicate this derivative TDIU claim. If this claim is denied, send the Veteran a supplemental SOC (SSOC) and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. He has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs