Citation Nr: 1330598	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO.  12-34 704	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Entitlement to higher initial disability rating for posttraumatic stress disorder (PTSD), evaluated as 30 percent disabling from April 23, 2010, to January 13, 2013, and evaluated as 50 percent on January, 14 2013.

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

Joseph Aquilina




INTRODUCTION

The Veteran had active duty service from February 1969 to March 1973.
This appeal comes to the Board of Veteran's Appeals (Board) from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri which granted the Veteran's service connected posttraumatic stress disorder (PTSD) at 30 percent disabling.  

In August 2010, the Veteran submitted a notice of disagreement contending a higher rating was warranted. Subsequently, the RO continued the 30 percent rating in a November 2010 rating decision. Thereon, the Veteran filed a timely notice of disagreement. In the interim the RO increased the rating to 50 percent in a February 2013 decision with an effective date of January 14, 2013. As this does not represent an award of the maximum rating available, the Veteran's claim for a higher initial rating for PTSD remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (in a claim for an increased rating, a Veteran is presumed to be seeking the maximum benefit allowable.)

As this appeal involves a request for a higher initial rating following the grant of service connection, the Board has characterized the PTSD issue in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999).

The Board also notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims (the Court) held that a TDIU claim is part of an increased disability rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Veteran asserted in his September 14, 2010 statement in support of the claim that his PTSD was hindering his ability to work.  Additionally, the Veteran's September 28, 2010 VA examination set forth that the Veteran's PTSD interfered with work performance and concentration. Further, a January 2013 VA examination also indicated the Veteran's difficulties in the workplace as a result of his PTSD symptoms.  As such, the issue of TDIU has been reasonably raised by the record and in conjunction with the PTSD higher rating claim.

The issue of a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. For the period from April 23, 2010, to September 27, 2010, the Veteran's PSTD had not manifested symptoms in excess of occupational and social impairment with occasional decrease in work efficiency.

2. Since September 28, 2010, the Veteran's PTSD has manifested by occupational and social impairment with deficiencies in most areas ; however, the Veteran's disability is not shown to have been manifested by total occupational and social impairment.


CONCLUSIONS OF LAW

1. For the period of April 23, 2010 to September 27, 2010, criteria for an evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (2013).

2. As of September 28, 2010, the criteria for an evaluation for 70 percent have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters: Duties to Notify & to Assist

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1). 

Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). 

With respect to the initial rating claim on appeal, the VCAA duty to notify was satisfied by way of letters sent to the Veteran dated May 2010 (addressing the elements of service connection prior to the grant of service connection for PTSD), and again in August 2010 (addressing the elements pertinent to the increased rating claim). Indeed, as this is an appeal arising from a grant of service connection, the notice that was provided before service connection was granted is legally sufficient, and VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006).

The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issue on appeal has been obtained. The Veteran's service treatment and post-service VA treatment records were obtained and the file includes arguments, contentions and statements of the Veteran and his representative.

VA's duty to assist includes obtaining an examination and medical opinion when necessary to make an adequate determination. See Duenas v. Principi, 18 Vet. App. 512 (2004). During the appeal period, the Veteran was afforded a VA examination of his PTSD in September 2010 and an opinion was issued with supporting rationale. In January 2013, the Veteran was afforded another examination, where another opinion was issued with supporting rationale. Accordingly, the Board finds that VA has complied, to the extent required, with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e).

Procedural History

The Veteran is appealing an original assignment of a disability evaluation following an award of service connection for PTSD. In April 2010, the Veteran filed an original claim for PTSD and service connection was awarded in June 2010 at 30 percent with an effective date traced to the date of the Veteran's claim. In August 2010, the Veteran submitted a notice of disagreement asserting that his PTSD symptoms warranted a higher rating. However the RO in a November 2010 decision continued the Veteran's PTSD rating at 30 percent. 

Subsequently, the Veteran submitted a notice of disagreement in October 2012 contending a worsening of his PTSD. In a February 2013 rating decision, the Veteran's evaluation was increased to 50 percent with an effective date of January 14, 2013. As this increase did not constitute a full grant of the benefits sought, the increased initial evaluation remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Therefore the issues are whether an evaluation in excess of 50 percent as of January 14, 2013 is warranted, and whether the Veteran is entitled to higher ratings for the previous rating decisions in 2010. 

The Veteran has perfected an appeal as to the assignment of an initial rating following the initial award of service connection for PTSD. The Board is thus required to evaluate all the evidence of record reflecting the period of time between the effective date of the initial grant of service connection (in this case an effective date of April, 23 2010) until the present. This has resulted in "staged ratings" based upon the facts found during the period in question. Fenderson v. West, 12 Vet. App. 119,126 (1999). That is to say, the Board must consider whether there have been times since the effective date of his award when his disabilities have been more severe than at others. Id. at 126.

Disability Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 

Pertinent regulations do not require 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. 38 C.F.R. § 4.21. Therefore, the Board has considered (and found not applicable) the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589,595 (1991).

Mental disorders are evaluated under the general rating formula for mental disorders, a specific rating formula presented under 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 within 38 C.F.R. § 4.130. 

When evaluating a mental disorder, the evaluation must be 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 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).

A 30 percent disability rating is appropriate 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). 38 C.F.R. § 4.130.

A higher rating of 50 percent under the general rating formula for mental disorders is appropriate when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.

A 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); inability to establish and maintain effective relationships. Id; see also Bowling v. Principi, 15 Vet. App. 1, 11 (2001) (holding that in determining whether the Veteran meets the criteria for a 70% rating, the Board must consider whether the Veteran has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, and mood).

The requirements of a 100 percent rating under Diagnostic Code 9411 are: 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. 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).

In evaluating the evidence, the Board has also noted various Global Assessment of Functioning (GAF) scores contained in the DSM-IV, which clinicians have assigned. A Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing 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 that bears on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95.

A higher score correlates to a higher overall functioning of the individual. For instance, a score of 31-40 represents impairment in reality, severe difficulty with communication (speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (depressed man avoids friends, neglects family, and is unable to work; frequently beats up younger children, is defiant at home, and is failing at school) DSM-IV at 46-47. 

A score of 41-50 illustrates "[s]erious 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)." Id.  

A score of 51-60 represents "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Id.  

A score of 61-70 describes "[s]ome mild symptoms (e.g. depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within household), but generally functioning pretty well, has some meaningful interpersonal relationships." Id.

Factual Background 

For the initial rating decision of June 2010, the relevant medical evidence utilized were VA treatment records from April 21, 2010, through June 10, 2010. The Veteran had numerous treatment records for individual psychotherapy sessions for which he attended to treat depression. At an April 2010 session the Veteran was diagnosed with an intermittent explosive disorder, PTSD, anxiety and depressive disorder with a GAF score reported at "60+." 

At a May 2010 outpatient session, the Veteran sought treatment for PTSD and depression. He denied suicidal ideations and reported depression. The examiner noted the Veteran's mental state, signs of low energy and anhedonia. The overall evidentiary picture did not present a serious mental illness and the examiner reported the following: "Vet denies suicidal and homicidal ideation. No signs of psychosis. Mood and affect mildly depressed. Speech logical and coherent. Insight and judgment fair. Grooming and eye contact good. Oriented to person, place and time. Memory generally intact."

In a June 2010 psychology clinic note, increased symptoms associated with PTSD were reported by the Veteran: including, flashbacks, anger issues, depressed mood, and decreased motivation and interest in activities. The examiner reported that the Veteran "denies suicidal and homicidal ideation. No signs of psychosis. Mood and affect mildly depressed. Speech logical and coherent. Insight and judgment fair. Grooming and eye contact good." It was reported that while the Veteran had a problem with a previous work situation, he had started a new job and seemed to be doing better with people. The Veteran was also reported to be working on anger issues. 

In August 2010, the Veteran submitted a notice of disagreement urging that a higher initial rating was warranted.  Subsequently, the Veteran was issued a rating decision in November 2010 continuing his disability rating at 30 percent. The evidence considered for this rating included VA examinations and treatment records spanning August 2010 through November 2010.

The Veteran was afforded a VA examination on September 28, 2010.  While the November rating decision continued the Veteran at 30 percent, the recorded findings from the September 28, 2010 examination indicate a symptomatology that is more disabling with symptoms of increased frequency and severity. The objective findings of the examination indicated inter alia, that the Veteran was experiencing panic attacks 2-3 times a week including at the work place and "suicidal thoughts or attempts every few months."  The Veteran noted feelings of delusions and paranoia, often worrying that someone was breaking into his house.  Depression and anxiety were noted to occur on a daily basis at a moderate to severe level.  As far as social impact, the Veteran had become withdrawn leading a "solitary, isolated lifestyle." The examiner also noted that the Veteran was not able to maintain "personal hygiene and other basic activities of daily living." The September 2010 examiner noted a diagnostic impression of PTSD with depression and anxiety as a result of the Veteran's survivor's guilt and combat trauma. A GAF score of 57 was assigned.



In October 2012, the Veteran submitted a notice of disagreement contending a higher disability rating was warranted. 

The Veteran's spouse submitted a statement in December 2012 in support of a higher rating. She indicated that the Veteran had a long history of PTSD related symptoms including becoming socially withdrawn, conflicts in the work place due to his PTSD, that the Veteran was easily angered and agitated, had an inability to attend group or social functions and difficulty interacting with others. Additionally, she noted that the Veteran had suicidal ideations and tendencies including an instance when the Veteran tried to jump out of a moving car.

A January 2013 VA examination revealed an increase of the severity of the Veteran's psychiatric symptoms. Subsequently, the RO assigned a 50 percent rating. The examiner recorded the Veteran's difficulty in adapting to stressful circumstances, occupational and social impairment with reduced reliability and productivity, disturbances of motivation and mood, anxiety, chronic sleep impairment, and depressed mood.  The examiner reported that the Veteran had contemplated suicide within 2-3 weeks of the examination and that the Veteran had contemplated or attempted suicide several times in his lifetime. The examiner noted that the Veteran had a diminished interest or participation in significant activities, a detachment and estrangement from others as well as a restricted range of effect. The examiner also noted the Veteran's difficulty in concentrating, hypervigilance, and an exaggerated startle response. The Veteran also experienced a depressed mood most of the day nearly every day with numbing effect. Additionally, the Veteran reported impulsive homicidal ideation and road rage. 

The symptom picture the examiner states, was one which caused "substantial impairment in his social and occupational functioning." The Veteran received a GAF score of 50, which by virtue of falling in the 41-50 range indicates serious difficulty in social or occupational functioning. 


Analysis

Based on the evidence discussed above, the Board finds that while a rating in excess of 30 percent is not warranted for the period from April 23, 2010, to September 27, 2010, the evidence of record to be a least in equipoise as to whether the Veteran exhibited sufficient symptoms to warrant a 70 percent rating effective September 28, 2010.  The below discussion addresses the reasons and bases for the disability ratings herein affirmed and increased. 

For the period from April 23, 2010, to September 27, 2010, the Board finds that the preponderance of the evidence is against a rating in excess of the 30 percent currently assigned. During this period, GAF score was reported as 60+, which is consistent with the symptoms associated with the 30 percent criteria under 38 C.F.R. § 4.16; that is, between a mild and moderate level of impairment.  During this period, the evidence shows that Veteran was maintaining employment, losing one job but quickly starting another.  While the Veteran was certainly suffering from significant psychiatric symptoms during this time period, it is also apparent that he was managing the symptoms in a way that the criteria for a rating in excess of occupational and social impairment with occasional decrease in work efficiency is not warranted.  The evidence simply fails to show that his overall symptomatology was consistent with the next higher rating of 50 percent, which required occupational and social impairment with reduced reliability and productivity.  

The evidence since the September 28, 2010, examination, however, shows that the Veteran's symptoms had increased significantly.  During this period, he is shown to have been exhibiting symptoms associated with rating criteria higher than 30 percent.  The Veteran's symptomatology includes overlapping of symptoms from the criteria for 50 percent and 70 percent rating.  The evidence shows that during this time period the Veteran has been experiencing symptoms as panic attacks more than two to the three times a week with disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. Consistent with 38 C.F.R. § 4.7, the Board finds that the overall evidentiary picture more closely approximates the rating of 70 percent over 50 percent. 

Indeed, the overall evidentiary picture shows that the Veteran's symptoms more closely align with a rating of 70 percent. While the September 28, 2010, examiner selected "[o]ccupational and social impairment with reduced reliability and productivity" which is language typical of a 50 percent rating, the Veteran's symptomatology from this exam onward warrants a rating at 70 percent.  The September 28, 2010 examination shows that the Veteran was experiencing continuous daily bouts of depression, anxiety and paranoia with moderate to high levels of severity, with symptoms productive of serious mental illness and psychiatric stress. Additionally, the notation was of made of daily anger/irritability, concentration and memory impairment with moderate to severe levels of severity. The September 28, 2010 examiner also indicates the Veteran's numerous instances of suicidal ideation and that the Veteran has also become highly withdrawn socially, leading a solitary lifestyle. The examiner also states the Veteran has difficulty in adapting to stressful circumstances in the work place, frequently arguing with co-workers and exhibiting deficient performance, an inability to maintain effective relationships especially with his children and his extended family, impulse control and outbursts as well as consistent suicidal ideations. These symptoms clearly demonstrate that his disability warrants a 70 percent rating. 

The Veteran was given a GAF 50 score at his January 2013 examination indicating serious symptoms (such as suicidal ideation) and serious impairment in social or occupational functioning. This GAF score is not ultimately determinative in terms of what kind of rating that the Veteran receives; instead, the rating is useful to determine the entire evidentiary picture surrounding the Veteran's mental illness.  Thus, the Veteran's GAF score of 50 signifies that for purposes of psychiatric treatment and evaluation, the Veteran has serious daily symptoms to the extent that most areas of his life are compromised. His previous GAF score of 57 at the September 28, 2010 examination, read in conjunction with the symptoms he exhibited, show the Veteran was experiencing serious symptoms of mental illness.

Based on the Veteran's increasing inability to maintain effective relationships, social impairment, consistent depressive state, poor concentration, nightmare, paranoid ideation, memory impairment difficulty in adapting to stressful circumstances, increased irritability and suicidal ideation, the Board finds that the Veteran's PTSD most nearly approximates a 70 percent rating.  38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2013).

A rating in excess of 70 percent is not warranted during this time as there is no evidence that the Veteran experiences symptoms like persistent delusions and hallucinations; he does not have total occupational and social impairment, as he continued to maintain some contact with his family, and despite a panic attacks and arguments at his workplace, the Veteran was able to maintain employment before being laid off.  He does not exhibit symptoms like grossly inappropriate behavior, inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relationships, own occupation or own name.

The Board also acknowledges the lay evidence in this case; that the Veteran and his spouse have asserted that his PTSD disability has been more severe than the assigned disability rating reflects. Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). The lay evidence submitted by the Veteran's spouse comports with the medical evidence. The Veteran's spouse states she witnessed a suicide attempt by the Veteran where he tried to jump out of a moving car. She also states the Veteran was easily agitated, losing his temper quickly and going "on a rampage" frightening their children, that the Veteran had a panic attack at his work place, and that he exhibited violent ideations with road rage. The Board acknowledges that the lay statements provided by the Veteran and his spouse generally align with the assigning a 70 percent rating. 

The Board has carefully considered the Veteran's contentions. In this case, the competent medical evidence and clinical findings comporting with the applicable rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the PTSD disability on appeal. See Massey v. Brown, 7 Vet. App. 204, 208 (1994) (generally, the Board has been directed to consider only those factors contained wholly in the rating criteria). The clinical assessments of record are considered persuasive as to the Veteran's degree of impairment due to PTSD, since they consider the overall industrial impairment due to his psychiatric illness. Consequently, the Board finds that the cited medical opinions and GAF score are quite probative in support for the finding of a 70 percent rating for PTSD.
 
Consideration has been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director of Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b) (1) (2013); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b) (1) (2013); Thun, 22 Vet. App. at 116.

The schedular evaluation in this case is not inadequate. An evaluation in excess of 70 percent is provided for certain manifestations of the service-connected PTSD disability, but the evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability, as the criteria assess the level of occupational and social impairment attributable to the Veteran's symptoms. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. 

In deciding the Veteran's increased rating claim, the Board has considered Fenderson v. West, 21 Vet. App. 505 (1999), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. The Board therefore finds that the evidence is sufficient to show that the Veteran had a worsening of the disability on appeal that an increased rating is warranted. As discussed above, the Board finds evidence that the Veteran's rating for PTSD should be increased to 70 percent effective September 28, 2010. 


ORDER

For the period of April 23, 2010 to September 27, 2010, criteria for an evaluation in excess of 30 percent for PTSD is denied.

From September 28, 2010, a 70 percent rating for PTSD is granted subject to the law and regulations governing the payment of monetary benefits. 


REMAND

In Rice, supra, the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. As stated in the Introduction of this decision, the issue of entitlement to TDIU has been raised by the record. The Board reiterates here that the Veteran asserts in his September 2010 statement in support of the claim that his service-connected PTSD interferes with his ability to maintain and obtain employment. Moreover, difficulty with maintaining employment is inherent in the criteria for assignment of a 70 percent disability rating for a psychiatric disorder. Thus, in light of Rice, the claim of entitlement to a TDIU rating is considered as part and parcel of the claim for a higher rating for the Veteran's service-connected. This contention has not been considered by the RO and requires further development.

Accordingly, the case is REMANDED for the following action:

1. With respect to the TDIU claim, the RO must review the record and ensure compliance with all notice and assistance requirements set forth in the VCAA. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159 The RO should also issue notice to the Veteran in accordance with 38 C.F.R. § 3.159 with regard to the TDIU claim and send the Veteran the appropriate TDIU claim form.

2. Thereafter, the RO shall undertake any other development deemed necessary, to include obtaining any medical examinations and/or opinions deemed necessary.

3. Thereafter, adjudicate the claim for a TDIU due to service-connected disabilities on a schedular basis under 38 C.F.R. § 4.16. This shall include consideration of the recently assigned 70 percent rating for PTSD. If the claim is not granted to the Veteran's satisfaction, send him and his representative an SSOC that includes a summary of the evidence and discussion of all pertinent regulations. The Veteran and his representative should be given an opportunity to respond to the SSOC before returning the claims file to the Board for further appellate consideration.


The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs