Citation Nr: 1328865 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 11-09 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial rating for posttraumatic stress disorder (PTSD) in excess of 30 percent for the period of April 21, 2010 to March 1, 2011. 2. Entitlement to an initial rating for PTSD in excess of 50 percent from March 2, 2011, forward. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Ozger-Pascu, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to October 1968, including service in the Republic of Vietnam. The Veteran is in receipt of the Combat Infantryman Badge (CIB) and the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that granted service connection for PTSD and assigned an initial 30 percent evaluation was assigned, effective April 21, 2010. In a March 2011 rating decision, the RO increased the evaluation of the Veteran's PTSD to 50 percent, effective March 2, 2011. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issues on appeal. In May 2011, the Veteran was afforded a hearing before a Decision Review Officer (DRO) of the RO. FINDING OF FACT Since April 21, 2010, the evidence shows that the Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking and mood; however, the preponderance of the evidence shows the Veteran does not suffer from total occupational and social impairment. CONCLUSION OF LAW Effective April 21, 2010, the criteria for a rating of 70 percent for PTSD have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.126(a), 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist The Veteran's PTSD claim arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service and VA treatment records have been obtained. VA has also associated private treatment records and VA treatment records with the Veteran's claims file. The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. VA afforded the Veteran psychiatric examinations in May 2010 and March 2011. Although he stated at his hearing and elsewhere that the examinations were inadequate for rating purposes, the Board finds otherwise. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board finds the examinations were adequate to evaluate the Veteran's PTSD disability and the severity of his symptoms because the examiners reviewed the Veteran's claims file, performed psychiatric evaluations of the Veteran, identified his PTSD symptoms and provided an assessment of the nature and severity of the disability. Nieves-Rodriguez; Stefl. Further, the Veteran was afforded a hearing before a DRO in which he presented oral argument in support of his PTSD claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the DRO did not note the bases of the prior determinations or the elements that were lacking to substantiate an initial increased PTSD rating. Also, the DRO did not specifically seek to identify any pertinent evidence not associated with the claim. This was not necessary, however, because the Veteran volunteered his PTSD symptoms and treatment history since service and discussed their nature and severity. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either one identified any prejudice in the conduct of the DRO hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As the Veteran has not identified any additional evidence pertinent to the claim, and as there are no additional records to obtain, the Board concludes that there is no further action to be undertaken to comply with VA's duties to notify and assist, and the Veteran will not be prejudiced by the Board's adjudication of his claim. Analysis The Veteran asserted in his substantive appeal of April 2011 and at his DRO hearing in May 2011 that his PTSD symptoms more closely approximate a 70 percent rating rather than his current 50 percent rating because his suicidal ideation, excessive working hours, inability to maintain employees, and past polysubstance abuse. He stated that he has been suicidal almost on a daily basis and that he will always battle his suicide ideation. He also explained, for example, that after meeting with the VA psychologist for compensation purposes, he cried for two hours and was unable to concentrate for two weeks. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall 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. 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). The Board has also considered assigning separate ratings for distinct periods of time, based on the facts. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran's PTSD is currently rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. According to 38 C.F.R. § 4.126(a), a mental disorder shall be evaluated "based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." Under DC 9411, a 50 percent rating is warranted if the evidence shows 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. A 70 percent evaluation is warranted if the evidence shows 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 an inability to establish and maintain effective relationships. A 100 percent evaluation is warranted if the evidence shows 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. Entitlement to a certain disability rating requires sufficient symptoms of the kind listed in that rating, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In determining whether the Veteran meets the criteria for a higher rating, the Board must consider whether the Veteran 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 making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra, at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the U.S. Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, supra, at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Psychiatric health care providers have their own system for rating a psychiatric disability under the criteria listed above. This is the Global Assessment of Functioning (GAF) rating scale, which is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM- IV); Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The GAF score assigned does not determine the disability rating VA assigns, but it is one of the findings employed in that determination. As relevant to this case, a GAF score from 51 to 60 is determinative 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 co-workers). In finding that a 70 percent evaluation is warranted during the entire appeal period, the Board has considered the Veteran's GAF scores, the objective findings and the competent lay evidence relating to the frequency and severity of his psychiatric symptoms. Comparing the Veteran's reported and documented symptoms of PTSD to the rating schedule, the Board finds that his PTSD most nearly approximates the criteria for a 70 percent disability. In April 2010, the Veteran submitted a private opinion from his primary care physician, who had been treating him since 1999. The examiner reported that the Veteran has suffered from insomnia for many years, which he treated with prescription medication. The examiner noted that he had diminished interest and participation in activities as evidenced by the fact that after obtaining his college degree, the Veteran was unable to work in his chosen field of study because of his anxiety, irritability and dysfunction. Most notably, the examiner opined that although the Veteran appeared functional and socially competent, the examiner explained that his emotional disturbance due to PTSD restricted his social functioning and occupational abilities. The Veteran's diminished social functioning, the examiner noted, was evidenced by his divorce from his first wife. The examiner diagnosed the Veteran with PTSD due to his Vietnam experiences. The Veteran's wife submitted a statement in April 2010, which shed further light on the severity of the Veteran's PTSD symptoms. She explained that she has known the Veteran since high school but stated that the man she once knew no longer exists. She talked about the Veteran's drug addiction, which he used to blur his "horrid memories." She also discussed his suicide attempts, his constant rage, irritability and nightmares, and the effects these have had on their family and on his functioning. She added that he was unable to sleep without prescribed medication. The Veteran underwent a VA examination in May 2010. At that examination, he complained of insomnia, depression, anxiety and irritability and indicated that the symptoms were constant and ongoing and affected his daily functioning. The Veteran also reported suicidal ideation with plan to commit suicide in 1973. The Veteran reported being hospitalized for depression with suicidal thoughts sometime in 1975. He explained that he could not work in his field of study because he seemed so different from the other employees at the company where he obtained his first job out of college. In his current business, he is unable to maintain employees because he "couldn't handle it." He stated that he has recollections, recurrent dreams and flashbacks of his experiences in Vietnam, experiences that he avoids discussing with anyone other than with other Vietnam veterans. The examiner diagnosed the Veteran as having PTSD and indicated that he was using work to distract himself from his symptoms, that he had restricted affect and depression, irritability and outbursts of anger. In July 2010, the Veteran's sister, a psychiatric nurse practitioner, submitted a statement in support of the Veteran's claim for PTSD. She stated that her brother was visibly changed since his return from Vietnam where he was wounded. She reported that when the Veteran was not "self-medicating into numbness," he talked about the reasons for which he joined the military, his experience in Vietnam and how he felt ostracized by society. She stated that he had nightmares, flashbacks, hyperstartle and hypervigilance responses, and an addiction to codeine. She also described how, upon being woken up from sleep, the Veteran would act as if he were shooting at people. She described the Veteran's suicidal ideation and his plan, years ago, to jump off the Skyway Bridge in Florida. The Veteran's sister also remarked that the Veteran, an "extremely intelligent man" was too internally stimulated to work in his related field of study and instead chose to become a concrete contractor. In similar vein to the Veteran's private primary care physician, she contended that the Veteran presented well and that he was able to function and compensate for his symptoms and "even for his underlying paranoia." She also stated that the Veteran acknowledged to her that the only time he "feels truly 'at home'" is with other Vietnam veterans. In his August 2010 Notice of Disagreement (NOD), the Veteran contended that the VA examiner failed to realize the extent of his PTSD symptoms and to appreciate the fact that he was working as a way to cope with his symptoms and not because he lacked the symptoms. He stated that he suffered every day from his PTSD and that he has been suicidal nearly on a daily basis. He explained that he lived a masked life and that most people cannot comprehend his thoughts and that "if most people had to spend an hour in my head they would not make it." Although he has lived a productive life, he stated he was unable to manage employees because it was too stressful for him to deal with people. The Veteran indicated that after his evaluation by the VA examiner, he "cried for two hours" and was unable to "concentrate for a couple of weeks" because he had recounted things that he tried to "keep hidden in [his] mind." In a September 2010 statement, the Veteran disagreed with the VA examiner's assessment that he did not have suicidal or homicidal ideation. He reported that suicide was a constant part of his life and will continue to be. He stated that he has become good at masking his symptoms but that for the past 40 years he has suffered the "mentally monstrous effects of PTSD" and that he lives an impaired life because of his PTSD disability. The Veteran reiterated that even submitting his statements to the VA for compensation purposes caused him anxiety. VA provided the Veteran another VA psychiatric examination in March 2011. The Veteran reported that he had a good relationship with his wife and his children but acknowledged having friction with his wife because she does not understand why he worked 80 hours or more a week. He stated that he carries multiple tools of the same type in his truck and that he inspects safety measures multiple times. He also reported sleeping approximately three hours per night with medication and that during the day he suffered from irritability. He stated that he felt constant rage and verbal aggression towards others and that occasionally he hits his hand on the door or the wall. He acknowledged having homicidal thoughts and persistent suicidal thoughts with no plans or intentions. The Veteran reported recurrent intrusive images, thoughts and dreams of his time in service and intense psychological distress at cues that remind him of his experiences in service. The Veteran explained that he avoids activities, places or people that arouse these recollections and that he is socially withdrawn and has difficulty trusting others. The Veteran estimated that he has panic attacks on an approximately monthly basis. The examiner diagnosed the Veteran as having PTSD and estimated that his GAF score was 55. The examiner reported that the Veteran's affect was blunted, and his mood was anxious, agitated and depressed. The examiner concluded that the Veteran used work as a coping mechanism to avoid his PTSD symptoms, which results in impaired social and family functioning. On his VA Form 9 of April 2011, the Veteran stated that he continued to disagree with his rating of 50 percent and contended that his PTSD warranted a 70 percent evaluation. In May 2011, the Veteran testified at a DRO hearing. The Veteran reported that he was unable to handle managing employees because it is too stressful. He also explained that his work is as a form of therapy and that he is most comfortable working and uncomfortable in most other situations. For example, he stated that a few weeks prior to the hearing he had contracted "pink eye" in both eyes. He was not wearing his glasses and when he stepped off his truck he missed the step and injured his knee, tearing his lateral meniscus. Only when a close relative examined his knee did he learn that he needed surgery. Yet, throughout this time, he continued to work every day. He reported that he had maintained this pattern throughout the years, regardless of any other matters going on in his personal life. For example, he testified that he worked even on the day he got divorced from his first wife and on the day his mother died. The Veteran further testified that he has lived with suicidal ideation most of his life and that during the 1970s and 1980s he abused drugs. He said that the day his son got married, he ingested 55 Lortabs. He explained that the reason he did not apply for compensation benefits for PTSD sooner was because he was under the impression that he could not be service-connected while working full time and given the severity of his PTSD symptoms he could not imagine being unable to work. Only when a service organization and his friends from service informed him that he could continue working did he apply for service-connection for PTSD. The Board notes that although VA examiners have estimated his GAF scores ranging from 55 to 60, the Board finds that his PTSD is much more disabling than reflected by those scores and agrees with the Veteran that his PTSD most closely approximates the criteria for a 70 percent rating. The competent and credible lay and medical evidence shows that the disability has been productive of recurrent recollections and dreams of the traumatic events he experienced in service, avoidance of the stimuli associated with the trauma and chronic sleep impairment, irritability, outbursts of anger and hypervigilance. In addition, the Veteran exhibited symptoms of aggression, depressed mood and anxiety. Indeed, both VA examiners and the Veteran's private primary care physician noted that the Veteran's psychiatric symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. Moreover, the record is replete with references to the Veteran's reported suicidal ideation. The Veteran's wife reported that the Veteran made suicide attempts and that the thought of "carrying it through" remains a "constant." The Veteran's sister also reported an incident where the Veteran had suicidal plans to jump off the Skyway Bridge in Florida. In August 2010, in his NOD and at his hearing, the Veteran stated that he has been suicidal nearly on a daily basis and it is "just something I live with." Similarly, The Veteran reported in a September 2010 statement that suicide is a constant part of his life and that he will always battle this symptom, which he reiterated at the March 2011 VA psychiatric examination. Additionally, the Veteran reported obsessional rituals and behavior. At his hearing in May 2011, the Veteran reported that he is obsessed with work and that he worked even on days when he was ill, the day he got divorced and the day his mother died. The Veteran reported that he went to work even though at the time of the hearing he had just injured his knee and needed surgery. The Veteran informed the DRO that he worked because work was the thing that he is able to control, stating that "work has enabled me to have something to go to no matter what...." Also, at his March 2011 examination, the Veteran reported obsessive behavior such as obtaining and carrying around 3 or 4 of "everything" he uses in his work. He also reported checking and rechecking various safety measures. Further, the Veteran reported impaired impulse control. In April 2010, his primary care physician determined that he suffered from irritability and outbursts of anger related to his PTSD-induced anxiety. Similarly, his wife reported that she and their children live constantly in the shadow of the Veteran's rage and irritability. The Veteran reported rage and irritability at both of his VA examinations, stating in March 2011 "I have a constant rage problem." Moreover, the Veteran reported that when alone, he hits his hand on the door or the wall and has constant rage, including verbal aggression towards employees. The Veteran also reported difficulty adapting to stressful circumstances. For example, although the Veteran appears to have completed a college degree in agronomy, he told the VA examiner at his May 2010 examination, that he could not maintain a job in that field for more than 88 days and instead became self-employed, working as a contractor. He reported that he was unable to work with people, including his own employees, because managing employees caused him too much stress. He also acknowledged having anxiety and inability to adapt in social situations. For instance, he stated at his May 2010 VA examination that on the day his son got married a few years prior, he took 55 Lortab to manage his anxiety. Additionally, the Veteran reported both at the March 2011 and the May 2010 examinations as well as in other documents submitted to the VA, that he uses work to distract himself and as a form of therapy or coping mechanism to avoid his PTSD symptoms. To that end, he works approximately 70-80 hours or more a week in order to avoid thinking about "it" [his experiences in Vietnam], which upsets his wife. In his VA Form 9 of December 2011, he said "My work is my therapy and therefore I consume my every waking hour with it, almost ritualistically." The Veteran reported that he has difficulty establishing and maintaining effective relationships. The Veteran's primary care physician determined at the April 2010 examination that the Veteran's PTSD has caused significant problems in interpersonal relationships, including the Veteran's divorce from his first wife. The Veteran's current wife stated that the Veteran is unable "to live any kind of normal life and interact with people" and that the Veteran is withdrawn. The Veteran reported similar feelings at his May 2010 VA examination where he explained that if invited to a friend's house to watch a game of football, he would avoid this because of extreme anxiety. Although he has been married to his current wife for almost 20 years and has reported having a strong relationship with his sons, the Veteran stated at his March 2011 VA examination that he does not "really have any [social relationships]" because he "feel[s] uncomfortable." In sum, resolving all reasonable doubt in his favor, the Board finds that the Veteran's PTSD most closely approximates a 70 percent rating since April 21, 2010. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board further finds that the next higher disability evaluation of 100 percent is not warranted because the preponderance of the evidence shows that the Veteran does not suffer from 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, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name. The record shows the Veteran is employed full time, works more than 80 hours a week and has a "good" relationship with his wife and children. Throughout the appeals period, including at the hearing, the Veteran exhibited appropriate thought processes, communication, behavior and personal hygiene. Moreover, the record is negative for delusions, hallucinations, inappropriate behavior, disorientation or memory loss. While the Board recognizes that the Veteran presents symptoms of suicidal and homicidal ideation, he stated that he does not have plans to commit suicide or homicide. The Board has considered whether staged ratings under Hart are appropriate for the Veteran's service-connected disability. The Board finds that the Veteran's symptoms associated with his PTSD have been stable throughout the appellate period. Therefore, staged ratings are not warranted for any period of time. Extraschedular and TDIU Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating is in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's PTSD is characterized by occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. These manifestations are contemplated in the applicable rating criteria. The ratings criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. The Court has held that entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Here there is no evidence of unemployability due to the Veteran's PTSD; in fact, the Veteran works 70-80 hours a week because he uses his work as therapy and a coping mechanism. The Board has, therefore, considered the question but the record does not warrant entitlement to TDIU because the Veteran is currently employed and working 70-80 hours per week. ORDER Subject to the law and regulations governing payment of monetary benefits, effective April 21, 2010, a 70 percent rating for PTSD is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs