Citation Nr: 1330599 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 12-02 441 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial disability evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Neichole SJ Linhorst, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1978 to November 1982, and from November 1990 to March 1991. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2011 rating decision in which the RO awarded service connection for PTSD and assigned an initial rating of 50 percent effective from the September 25, 2009 date the claim was received. The Veteran filed a notice of disagreement with the initial rating in February 2011. The RO issued a statement of the case in December 2011. The Veteran filed a substantive appeal (via a Form 9, Appeal to Board of Veterans' Appeals) in January 2012. Because the Veteran disagreed with the initial rating assigned following the award of service connection for her PTSD, the Board characterized these claims in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for an already service-connected disability). A review of the Virtual VA electronic records storage system does not reveal any additional documents not currently associated with the paper claims folder. FINDING OF FACT For the entire appeal period, the Veteran's PTSD has been manifested by an inability to establish and maintain effective relationships, panic attacks, and depression that suggest occupational and social impairment with deficiencies in most areas, including work, family relations, thinking, and mood. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial rating of 70 percent, but no higher, for the Veteran's service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) states that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Turning to the duty to notify, VA must notify claimants of the evidence that is necessary, or would be of assistance in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. The notice VA provides 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. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. §3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Board finds that VA has satisfied its duty to notify under the VCAA because the contents of the notice letters fully comply with requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. More specifically, letters dated October 2009 and March 2009, sent prior to the rating decision issued in January 2011, advised the Veteran of the evidence and information necessary to substantiate her claim for service connection for her PTSD, including specific explanation regarding stressors. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that she needed to provide the names of any entities with additional records to help decide her claim. She was also informed that VA would attempt to determine what additional information was needed to process her claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. Here, the Veteran was granted service connection for her PTSD in a January 2011 rating decision, and challenged the 50 percent initial rating assigned therein. The Board notes that the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, 38 U.S.C.A. § 5103(a) notice has served its purpose. Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). As the contents of the notice letters fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), and the notices served the purpose as a decision was issued awarding service connection, a disability rating, and an effective date, the Board concludes that VA satisfied its duty to notify the Veteran. As for the duty to assist, VA satisfied its duty to assist the Veteran in the development of her claim. One part of VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. The record reflects that relevant service records, and private treatment records from providers identified by the Veteran were associated with the Veteran's claims file. Veteran did not identify additional sources of medical records other than those she submitted. Further, the duty to assist also includes providing an examination when warranted. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (internal citations omitted). Here, the Veteran was provided with a VA psychological examination for her PTSD in December 2010, so this duty was also satisfied. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to undertake to comply with the provisions of 38 U.S.C.A. § 5103, 5013A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of her claim. II. Factual Background The Veteran seeks an initial disability rating in excess of 50 percent for her service-connected PTSD. She contends that her currently assigned disability rating does not adequately reflect the severity of her disorder. The Veteran argued that she has social impairment with deficiencies in areas such as family relations, judgment, thinking, and mood, in addition to difficulty adapting to stressful circumstances and an inability to establish and maintain effective relationships. She further noted that the VA examiner assigned her a Global Assessment of Functioning (GAF) score of 45 and her psychologist assigned her a GAF score of 37. The Veteran argued that these GAF scores indicate that her PTSD should be rated at 70 percent disabling. Turning to the evidence presented, psychological associate L.G. evaluated the Veteran in July 2009, and included the summary of that psychological evaluation in an August 2009 report co-signed by psychologist A.F. The August 2009 report indicated that the Veteran described numerous PTSD symptoms, including frequent intrusive thoughts, traumatic nightmares, avoidance of conversations about her military service, estrangement and detachment from others, increased irritability, problems with memory and concentration, hypervigilance, feeling numb, and exaggerated startle response. It also stated that the Veteran had trouble going to sleep and staying asleep, as well as nightmares and night sweats. The Veteran reported getting up during the night to check the locks on her doors and windows. The Veteran reported that she did not look outside because she was afraid that she might see someone outside. The Veteran reported that she often saw moving shadows in her peripheral vision. She indicated that the smell of diesel trucks triggered memories of being in convoys in the desert. The Veteran indicated that she did not keep in contact with anyone from her unit, and described feeling withdrawn and distant, often isolating herself. She had difficulty trusting people and felt estranged from other people. She often crossed to the other side of the street to avoid talking to acquaintances, and reported that people have told her she is hard to get close to. The Veteran reported that she would get irritated easily, especially around other people, and further noted that she had been written up at her job for being distant and short tempered. Her office was changing from individual cubicles to having everyone together in one big room, and the Veteran was very concerned that she would not be able to tolerate this arrangement. The Veteran reported that if she had to wait for someone, she would become so anxious that she would end up leaving. She reported that she has walked out of doctor's appointments because she could not tolerate waiting. She reported problems with her memory and concentration, and this caused problems for her at work. The Veteran reported symptoms consistent with a Depressive Disorder, and described feeling sad most of the time and crying spells. She reported low energy, and described herself as "feeling like a walking zombie." The Veteran reported difficulty envisioning her future, and described mood swings, feeling disappointed with herself, and feeling helpless and concerned that she has no purpose. The Veteran also reported weight gain as she used food as a means of comforting herself. The mental status examination stated that the Veteran was cooperative with normal dress, soft-spoken, and oriented to time, place, and person. She had a linear thought process, and no current suicidal or homicidal ideation. The Veteran's mood was dysphoric, with flat affect, with limited judgment and insight. Her speech was slowed, at times marked by depressive silences. Psychological associate L.G.'s summation stated, "The Veteran's PTSD and depressive symptoms have interfered significantly in her personal, social, and professional life. Her affective instability and her lack of concentration undermine her ability to learn new tasks or be consistently productive or reliable at work. Due to her hypervigilance, hyperirritability, and isolating behaviors she is severely compromised in her ability to initiate or sustain work or social relationships. Therefore, I consider her to be permanently and totally disabled and unemployable." The Veteran was diagnosed with PTSD, chronic, severe, and depressive disorder, not otherwise specified with a GAF score of 37. Psychological associate L.G. provided an updated evaluation report, co-signed by psychologist A.F., concerning the Veteran's condition as of December 2009. She was still diagnosed with PTSD, chronic, severe, and depressive disorder, not otherwise specified, with a GAF score of 37. The report indicated that the Veteran's "distress level remains high." The Veteran reported that she did not sleep because she was afraid to go to sleep. She felt estranged from everyone, including her husband, and felt numb. The Veteran stated that she dreaded the holiday season because she did not want to socialize with anyone, and had arranged for her daughter to visit other family members so the Veteran would not have to visit. The Veteran continued to describe how alienated and isolated she felt when she was deployed, and indicated that one of the most distressing aspects was that the men she knew as friends when the unit was in the United States became predatory and aggressive when they got to the desert. She reported difficulty finding the words to describe what a terrifying and isolating time it was, and reported that she had no desire to communicate with any of her unit members again. The Veteran reported that she tried to avoid any media concerned with the present war or military. Psychological associate L.G. concluded that the Veteran's PTSD symptoms interfered significantly in all areas of her life, and she was considered totally and permanently disabled and unemployable. The Veteran underwent a VA examination in December 2010. The mental status examination noted that the Veteran was casually dressed, and she had the ability to maintain minimum personal hygiene. Her psychomotor activity revealed restlessness, as she bit at her fingernails throughout much of the interview. Her speech was soft or whispered and slow. The Veteran was cooperative and guarded in her attitude toward the examiner. She had a blunted affect and depressed mood. Orientation was intact to person, time, and place with no delusions and no hallucinations. She had a paucity of ideas, and thought content was unremarkable. Judgment analysis revealed that she understood the outcome of her behavior, but assessment of her insight showed that the Veteran partially understood that she had a problem. The Veteran had no inappropriate or obsessive/ritualistic behavior, no homicidal or suicidal thoughts, no episodes of violence, and no problem in activities of daily living. She had good impulse control. The Veteran reported panic attacks about 15 times per month that lasted about 10 minutes each. Her memory was not formally evaluated, but she was noted to have some difficulty remembering details and dates of past events that the examiner indicated was secondary to her depressive symptoms. Under "Effects of PTSD on Occupational and Social Functioning," the VA examiner stated that there was no total occupational and social impairment due to PTSD signs and symptoms. However, the VA examiner noted deficiencies in thinking, family relations, work, and mood resulting from PTSD signs and symptoms although there was no problem with judgment, and the school category was not applicable. As for examples of deficiencies in thinking, the VA examiner noted that the Veteran reported impaired concentration daily. She was noted to have difficulty focusing during the interview and she stated that she found it difficult to focus on what she was doing for any extended period of time. Deficiencies in family relations were noted, as the Veteran was withdrawn from all friends and family, including her daughter and estranged husband. Although she remained friendly with her husband, they had not lived together since soon after her return from Saudi Arabia. The Veteran's daughter was raised by her husband, and she did not feel she was a good mother because of her social isolation. The Veteran also stated that she had no friends. Turning to examples of deficiencies in work, the VA examiner noted that the Veteran reported that she missed work due to depression and low energy. She had been fired from at least one job and written up due to her difficulties getting along with other people. She reported that her concentration impaired her work and noted that she had been assigned different duties. Deficiencies in the Veteran's mood were indicated, as she reported daily chronic depression. Although she would get up and dressed daily, she reported that she bathed about once weekly because she "just doesn't care" any more. She also experienced panic attacks on a regular basis. Based on the foregoing analysis, the VA examiner diagnosed the Veteran with PTSD, major depressive disorder, and panic disorder without agoraphobia, and assigned a GAF score of 45. Finally, psychological associate L.G. provided an updated evaluation report, co-signed by psychologist A.F., concerning the Veteran's condition as of July 2011. L.G. noted that the Veteran's life continued to be significantly disrupted by her PTSD and depressive symptoms. The Veteran reported that she felt as if she was just "holding on by a thread" at work. She stated that she sat in a cubicle at the back of the room and startled whenever anyone walked behind her. She did not socialize with co-workers, and could not go to the cafeteria because there were too many people there and she could not bear to be in a crowd. She described herself as married but living separately because she preferred being alone. The Veteran indicated that she went to work and then home, not stopping to socialize or shop. She commented that she came back from Iraq a different person than who she was before she went to war. The Veteran indicated that she tried to avoid any media concerned with the present war or the military. In addition, she felt angry all the time, particularly about her daughter's illness. The Veteran wondered if her daughter's Chiari was a result of the chemicals she herself was exposed to during her military service. The Veteran continued to have severe sleep problems, and was often afraid to go to sleep because of her nightmares. Psychological associate L.G. considered the Veteran to be totally and permanently disabled, and assigned a GAF score of 37. III. Increased Disability Rating The Veteran seeks an initial disability rating in excess of 50 percent for her service-connected PTSD, contending that her currently assigned disability rating does not adequately reflect the severity of her disorder and a rating of 70 percent is warranted. The Board evaluates PTSD using the criteria in the General Rating Formula for Mental Disorders. 38 C.F.R. §§ 4.1, 4.130 (2012); Diagnostic Code 9411 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries encountered as a result of or incident to military service and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (2012). Under the criteria, a 50 percent rating is warranted 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. A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessive 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. Finally, a 100 percent disability rating is warranted when there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Board notes that when 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 (2012). As the United States Court of Appeals for the Federal Circuit recently explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan, 16 Vet.App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas"-i.e., "the regulation ... requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation 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) (2012). In addition to evidence regarding the Veteran's symptomatology and its impact on her social and occupational functioning, a Global Assessment of Functioning (GAF) score is another component considered to determine the entire disability picture for the Veteran. The GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)). The Board notes that the evidence includes GAF scores of 37 and 45. The explanation of GAF scores ranging from 41 to 50 reflect 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). Further, GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., 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 (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). The Board notes that a GAF score need not be accepted as probative if it is determined that the score does not reflect the overall psychiatric disability picture at the time of the examination. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others). However, the probative value of the GAF scores will be considered in light of the other evidence of record. Finally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2012). ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). After considering the relevant evidence of record, which includes the Veteran's own statements, private treatment reports from August 2009, December 2009, and July 2011, and the VA examination report dated December 2010, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for an initial rating of 70 percent, but no higher, is warranted for the Veteran's PTSD. The aforementioned evidence of record reflects that the Veteran's PTSD has been manifested by inability to establish and maintain effective relationships as indicated by her difficulty getting along with and socializing with people at work, estrangement from her husband while living apart from him, and limited participation in raising her daughter, panic attacks up to 15 times per month with diagnosed panic disorder without agoraphobia, and depression affecting her ability to function as indicated by a diagnosed depressive disorder. These symptoms suggest occupational and social impairment with deficiencies in most areas, including work, family relations, thinking, and mood, which is the level of impairment consistent with a 70 percent rating. As such, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's PTSD has more nearly approximated the criteria for an initial 70 percent rating. As noted previously, the symptoms listed for the rating criteria for 70 percent are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify" a 70 percent rating. Mauerhan, 16 Vet.App. 436, 442 (2002). The focus of the analysis is on whether the evidence presented supports the level of impairment on occupational and social functioning contemplated by a 70 percent rating, rather than on how many of the listed symptoms the Veteran exhibits. Mauerhan, 16 Vet.App. 436, 442 (2002); Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. In this case, the Board finds that the Veteran's overall symptomatology supports assignment of the 70 percent rating. The Board further finds that the assigned GAF scores are largely consistent with a 70 percent rating. A GAF score of 37 was assigned three times by the private treatment providers, and the VA examiner noted a GAF score of 45. GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., 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 (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). GAF scores ranging from 41 to 50 reflect 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). As noted above, the Veteran exhibited PTSD symptoms indicative of major impairment in several areas, including work, family relations, thinking, and mood. Thus, the GAF scores are given great probative value as the Board finds the scores do reflect the overall psychiatric disability picture at the time of the examination. However, the Board does not find that the evidence shows the level of total occupational and social impairment required for a 100 percent rating. As previously stated, a 100 percent disability rating is warranted when there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The evidence does not show these symptoms, or symptoms of the kind listed that indicate the level of occupational and social impairment associated with a 100 percent rating. In fact, the evidence notes that the Veteran had a linear thought pattern, no delusions or hallucinations, no grossly inappropriate behavior, no suicidal or homicidal ideation or danger, no inability to perform activities of daily living, no memory loss when memory was tested, and that she was alert and oriented to time and place. The Veteran was still married according to December 2010 notes although they were living separately, and she continued to work according to the most recent private treatment report from July 2011 though she was "hanging by a thread." The VA examiner indicated that the Veteran did not have total occupational and social impairment, and the Board finds that conclusion most probative in light of the evidence noted above. Finally, the Board acknowledges the private treatment provider's statement that the Veteran was totally disabled and unemployable, which implies total occupational impairment and is evidence that supports the 100 percent rating. However, the Board finds this evidence less probative since the provider's own notes covering the period from July 2009 to as recently as July 2011 consistently indicated that the Veteran remained employed. As such, a 100 percent rating is not warranted since the evidence presented does not show symptoms of the kind listed in the diagnostic criteria indicative of total occupational and social impairment required to obtain a 100 percent rating. Turning to extraschedular rating considerations, the Board must determine whether referral is warranted for a rating outside of the schedule for the Veteran's PTSD. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, so referral for extraschedular consideration is not required. The Veteran's reported symptomatology is contemplated by the regulations, and they do not indicate that a higher rating of 100 percent is warranted. Thus, the extraschedular analysis ends here, and referral for consideration of an extraschedular rating is not required. As a final point, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009) that every claim for a higher rating includes a claim for a total rating based on individual unemployability (TDIU) where a Veteran claims that her service-connected disability prevents her from working. In this case, the Veteran has not expressly alleged that she is currently unemployed or unable to secure or follow a substantially gainful occupation as result of her service-connected PTSD disability. Further, private treatment notes covering the period from July 2009 to July 2011, in addition to the VA examination in December 2010, indicated that the Veteran was still working. This evidence contradicts the Veteran's private medical treatment provider's statements that the Veteran is "totally disabled and unemployable." As such, the Board finds that Rice is not applicable to the current appeal. A claim for TDIU is implicitly raised whenever a pro se Veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating. Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). The Board finds that such cogent evidence is not present in this case. Thus, any further discussion of an issue of entitlement to TDIU is not necessary. For the reasons stated above, the Board finds that an initial 70 percent rating, but no higher, is warranted for the Veteran's PTSD. However, a rating in excess of 70 percent is not warranted at any time pertinent to this appeal. The Board has applied the benefit of the doubt doctrine in determining that the criteria for an initial 70 percent rating are met, but finds that the preponderance of the evidence is against assignment of a higher rating. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to an initial disability evaluation of 70 percent for PTSD is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs