Citation Nr: 1332663 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 07-00 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for disability of the left leg and foot. 4. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to April 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2004 and December 2006 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In the above noted December 2006 rating decision, the RO granted service connection and assigned a 30 percent rating for PTSD, effective March 4, 2004. The Veteran has appealed the initial rating assigned. In May 2008, the Veteran testified during a video conference hearing before the undersigned acting Veterans Law Judge. In November 2008 and August 2010, the issues currently on appeal were remanded for additional development. Following completion of the most development, the Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in November 2011. The appeal has since been returned to the Board for further appellate review. In September 2012, the Veteran's representative submitted additional evidence and waived initial consideration of the evidence by the agency of original jurisdiction (AOJ). The Board accepts the evidence for inclusion into the record on appeal. Also, the Board notes that when the Veteran originally filed his claims for service connection in February 2004, one of the disabilities claimed was peripheral neuropathy. The RO subsequently rated the disability in June 2004 and July 2004, characterizing the issue as service connection for "peripheral neuropathy due to Agent Orange exposure, also claimed as left leg and foot condition. Since that time, the Veteran was has been diagnosed not only with peripheral neuropathy, but also with complex regional pain syndrome of the left foot, as well as with left foot reflexive sympathetic dystrophy. The Board notes that the Veteran did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) in his left leg and foot, which include pain. See e.g. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Pursuant to the holding in Clemons, the Board will consider the Veteran's claim as encompassing a disability of the left leg and foot. As such, notwithstanding previous characterizations, the issue has been recharacterized as noted on the title page, above. The issues of service connection for right knee disability, for left knee disability, and for disability of the left leg and foot are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Since the award of service connection, the Veteran's PTSD has been manifested by symptoms that include anxiety, irritability/anger, flashbacks, nightmares, intrusive thoughts, isolation, decreased interest, sleep impairment, difficulty concentrating, and intermittent panic attacks; the symptoms have not been severe enough to result in occupational and social impairment due to deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood, nor have they resulted in an inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria are met for an initial rating for PTSD of 50 percent, but not more. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The present appeal arises from the initial award of service connection. The United States Court of Appeals for Veterans Claims (Court) has held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman, 19 Vet. App. 473, 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded). Thus, VA's duty to notify in this case has been satisfied. In any event, the Veteran has not pointed to any prejudice resulting from the timing or content of notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Furthermore, VA has done everything reasonably possible to assist the Veteran with respect to his claim for a higher rating for PTSD on appeal in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). The Veteran's VA treatment records and Social Security Administration (SSA) records have been reviewed. Also, all adequately identified and available private medical records have been secured and also considered. The Veteran has been provided VA medical examinations during the course of the appeal period, the reports of which are associated with the claims folders. The VA examinations are adequate for evaluating the Veteran's service-connected PTSD. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). With respect to the above, in a September 2012 Informal Hearing Presentation (IHP), the Veteran's representative argued that the Veteran should have been afforded a more recent VA psychiatric examination as he had been last examined in January 2009. The Board notes that although evidence submitted between the date of a VA examination and the Board's review could, in particular instances, conceivably require that a new medical examination be provided, the mere passage of time between those events does not. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); 38 U.S.C. § 5103A(d)(2). In the present case, the Veteran has not argued that his PTSD has worsened. Also, the Veteran's representative has argued only that "it would seem plausible the [V]eteran's condition has worsened." A review of the Veteran's VA outpatient treatment records since the January 2009 VA psychiatric examination reflects that the Veteran's PTSD symptoms have not worsened or improved, but appear, overall, as being stable. The requirement that the Secretary provide a thorough and contemporaneous examination is tied to those situations where the record does not adequately reveal the current state of a claimant's disability. See Caluza v. Brown, 7 Vet. App. 498, 505. The Board finds the record before it sufficient to adequately consider the Veteran's claim for an initial rating in excess of 30 percent for PTSD on appeal. Therefore, the Board cannot conclude that its duty to assist in this instance requires an additional medical examination. Otherwise, the Veteran and his representative have submitted written arguments which have been reviewed. Neither the Veteran nor his representative has identified, and the record of appeal does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim for an initial rating in excess of 30 percent for PTSD. The Veteran was afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the AVLJ identified the issues to the Veteran, the Veteran volunteered his treatment history, and the Veteran's representative and the AVLJ asked questions concerning symptomatology related to his increased rating claims. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims on appeal. II. Analysis Higher Initial Rating-PTSD Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). As noted above, in December 2006 the RO granted service connection and assigned a 30 percent rating for PTSD effective March 4, 2004, the date of the original claim for service connection. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this code, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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 under Diagnostic Code 9411 is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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. Lastly, a 100 percent evaluation is warranted for 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 ability 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board notes that when it is not possible to separate the effects of a service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall 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). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment of Functioning (GAF) scale is a scale from 0 to 100, reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); 38 C.F.R. §§ 4.125, 4.130. A GAF scored of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A GAF of 41-50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning. A GAF of 51-60 denotes moderate symptoms (e.g. flat affect, circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). A GAF of 61-70 denotes some 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 the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id. A review of the evidence of record reflects that in 1982, while riding a motorcycle, the Veteran was involved in an accident with a motor vehicle and suffered fractures of the left ulna, of the left patella, of the mid shaft of the left femur, of the left humeral condyle, of the right fifth and sixth ribs, in addition to a right pneumothorax and a closed head injury. The Veteran later filed for Social Security Administration (SSA) disability benefits. A January 1984 SSA decision references were made to the Veteran's mental state and it was noted that he suffered from depression, anxiety, a schizotypal personality disorder, as well as an affective disorder. The Veteran was deemed unemployable by SSA at that time until, apparently, he returned to work in 1987. Thereafter, he reported that he again became unable to work beginning in 2001. On March 4, 2004, the RO received the Veteran's claim for service connection for PTSD. Treatment records from the Cabarrus Center of Piedmont Behavioral Healthcare, dated in February and March 2004, reflect, in particular, findings of depression and also of PTSD. The Veteran was noted to complain of anxiety and nightmares associated with his service in Vietnam. A clinician reported that the Veteran was experiencing symptoms associated with both depression and PTSD. The Veteran's depression was noted as being aggravated by the memories of his tour in Vietnam as well as his physical problems. A GAF of 50 was reported. (A GAF of 41-50 denotes serious symptoms.) Treatment records from the Vet Center, dated from January to April 2004, reflect the Veteran's therapy for intrusive thoughts, recurrent dreams, anger issues, and sleep problems. In August 2004, the Veteran was treated at the Beckley, West Virginia VA Medical Center (VAMC). A clinic progress note reflects the Veteran's complaint of chronic foot pain and that he planned on driving off a mountain if he didn't get some relief. The Veteran was later evaluated, during which he reported experiencing PTSD symptoms associated with intrusive thoughts, nightmares, and some flashbacks that interfered with his daily activities. He also reported having been depressed on and off for years, and having thoughts of suicide in the past with no plan to harm himself. The Veteran further revealed that his last job was as a heavy equipment operator in 2001, but he was unable to perform the job due to his medical problems. It was further reported that he and his wife were separated and that charges had been filed against him for resisting arrest, but they had been later dropped. On mental status evaluation the Veteran was noted to be well oriented and occasionally paranoid. He denied suicidal/homicidal ideation, and his fund of general knowledge, judgment and insight seemed below average. The clinician's diagnosis was Axis I-PTSD, major depression, and anxiety disorder; Axis II-Personality disorder, non specific; and rule out history of delusional disorder, mild. No GAF score was reported. Later in August 2004, the Veteran was treated at the Salem (Virginia) VAMC. The Veteran was noted to complain of severe pain in his left lower leg. He reported that he was interested in having his leg treated and returning back to work. The Veteran indicated that he had stopped working three years previously due to this medical problem. He commented that he had been more and more depressed since that time. The Veteran also commented that he was having financial problems, that he was having relationship problems with his wife, and that he had recently been in the mountains during which he had been thinking most of the time about jumping off a cliff. The clinician's diagnosis was depression secondary to medical illness as well as a history of PTSD, per Veteran. A GAF of 40 was reported. (A GAF of 31-40 indicates some impairment in reality testing or communications, or major impairment in several areas.) The Veteran left the Salem VAMC the following day against medical advice (AMA). He reportedly did not wish to be on a closed psychiatric unit and demanded a release. It was noted that the Veteran presented with signs of PTSD in addition to his chronic leg problem. The discharge diagnosis was rule out mood disorder due to general medical condition, as well as rule out PTSD. The GAF reported at discharge was 45. In a report of November 2006 VA PTSD examination, the Veteran reported that he was married and was also close to his three sons. It was also reported that the Veteran had not worked in five years secondary to his physical problems. Also, that the Veteran had no friends and was involved in solitary recreational and leisure pursuits. Clinical evaluation revealed the Veteran to be alert, cooperative, and appropriately dressed. There were no loose associations or flight of ideas, and no bizarre motor movements or tics. The Veteran's mood was noted as a bit tense but cooperative and friendly, with appropriate affect. There were no homicidal or suicidal ideations or intent, no impairment of thought processes, as well as no delusions, hallucinations, ideas of reference, or suspiciousness. Otherwise, the Veteran was oriented times three, his memory was adequate, insight and judgment appeared to be adequate as was intellectual capacity. The examiner's diagnosis was PTSD and mixed personality traits. A GAF of 54 was reported. (A GAF of 51-60 denotes moderate symptoms or moderate difficulty in social, occupational, or school functioning.) During his May 2008 videoconference hearing before the undersigned, the Veteran testified that as he had become older he thought more about Vietnam. The Veteran also complained of sleep disturbance, panic attacks, anger issues, as well as problems with social relationships. He noted that he had very few friends. In a report of January 2009 VA PTSD examination, the Veteran reported that since 2001, when he could no longer work, his sleep had been worse, he had trouble controlling his temper, and he had been moody. He also reported nightmares two to three times a week along with intrusive thoughts. The Veteran felt himself to be anxious, short-tempered, and easily startled; he reported being hypervigilance and avoiding crowds. Otherwise, the examiner commented that the Veteran was married and close to his children. It was also reported that the Veteran had not worked in eight years secondary to his physical problems, and that he had no friends and was involved in solitary recreational and leisure pursuits. Clinical evaluation revealed the Veteran to be alert, cooperative, and appropriately dressed. There were no loose associations or flight of ideas, and no bizarre motor movements or tics. The Veteran's mood was noted as calm and his affect appropriate. He reported nightmares and intrusive thoughts. There were no homicidal or suicidal ideations or intent, no impairment of thought processes, as well as no delusions, hallucinations, ideas of reference, or suspiciousness. Otherwise, the Veteran was oriented times three, his memory was adequate, insight and judgment appeared to be adequate as was intellectual capacity. The examiner's diagnosis was PTSD and mixed personality traits. A GAF of 54 was reported. The examiner opined that the Veteran was not working secondary to his physical problems. The examiner also commented that the Veteran was somewhat anxious and irritable at times and felt sad on occasion. The examiner opined that the degree of the Veteran's social and occupational functioning related to his psychiatric disability was moderate. A review of the Veteran's VA mental health treatment records since the report of January 2009 VA PTSD examination reveals the Veteran as undergoing therapy in October 2010 and November 2010 for symptomatology of depression and PTSD. At those times mental status evaluation was normal. During a December 2010 therapy session, the Veteran reported having experienced suicidal ideation but he otherwise lived for his wife, children, and grandchildren. On mental status evaluation, the Veteran's mood was depressed and he presented with restricted affect; otherwise, the evaluation was reported normal. In a later December 2010 group therapeutic note, the Veteran commented that he had been with his wife for over 40 years and that he loved her very much. In an August 2011 group therapeutic note, the Veteran was noted as providing positive feedback and support to others in the group. In a September 2011 VA mental health note, the Veteran reported that he did feel bad at times but that he had no thoughts of suicide and that his grandson kept him going. He continued to report flashbacks, nightmares, and intrusive thoughts. Mental status evaluation revealed both judgment and insight as fair; otherwise, the evaluation was reported normal. The diagnosis was PTSD and a GAF of 51-60 was reported. In a November 2011 VA mental health note, the Veteran reported having had a stroke in May of 2011. He also reported having more nightmares. Mental status evaluation was normal. The clinician's diagnosis was PTSD as well as depression secondary to pain conditions. In a February 2012 VA mental health note, the Veteran talked of the discouragement he felt over his health situation. He reported that he still had problems with depression and guilt. He was quoted as saying, "When I had something to do, I had a better outlook on life." Mental status evaluation was normal. The clinician's diagnosis was PTSD and also depression secondary to pain conditions. In a March 2012 VA general medical examination, the Veteran's spouse reported that the Veteran had been depressed. The Veteran commented that he had suicidal thoughts and a plan. A VA mental health note later that day, in March 2012, noted that the Veteran was having thoughts of harming himself and it was all he thought about anymore. Subsequently that same day, in March 2012, the Veteran was noted to be a low risk factor for harming himself. Protective factors were positive social support (wife and family) as well as a sense of responsibility to family and significant other. The Veteran's spouse assured the VA clinician that the Veteran was safe and that he frequently talked about suicide when he became frustrated. However, he had never attempted or made a gesture to harm himself. Here, the evidence appears to support that the Veteran's PTSD and his depression are distinct and separate psychiatric disorders. The Veteran's depression has been linked to his physical problems and has precipitated his suicidal ideation. The Veteran's PTSD symptoms otherwise include anxiousness, nightmares, intrusive thoughts, irritability, and hypervigilance, isolation, decreased interest, sleep impairment, difficulty concentrating, and intermittent panic attacks. Notwithstanding the above, consideration has been given to the fact that psychiatric symptoms can sometimes overlap. Taking this into account and finding any reasonable doubt in the Veteran's favor, the Board finds that since the initial grant of service connection, March 4, 2004, the Veteran's PTSD warrants a 50 percent rating. Here, in light of the Veteran's complaints and the clinical findings, the Board finds the Veteran's disability picture more nearly approximates occupational and social impairment with reduced reliability and productivity due to such symptoms as panic attacks more than once a week; impaired judgment; disturbances of motivation and mood; as well as difficulty in establishing and maintaining effective work and social relationships. The Board also finds that the assigned GAF scores further support an increase to 50 percent, as they predominantly reflect moderate to serious impairment. Nonetheless, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, it must be considered in light of the actual symptoms of a veteran's disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). Here, the Board finds the Veteran's symptoms of anxiousness, nightmares, intrusive thoughts, irritability, and hypervigilance, isolation, decreased interest, sleep impairment, difficulty concentrating, and intermittent panic attacks more nearly approximate a 50 percent rating. With respect to a rating higher than 50 percent at any time during the appeal period, the Board notes that in rating psychiatric disabilities under 38 C.F.R. § 4.130, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a claimant's eligibility for a 70 percent rating requires 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., work, school, family relations, judgment, thinking or mood). See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Additionally, in Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id. at 117. Otherwise, the Federal Circuit commented that although a claimant's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the claimant's level of impairment in "most areas." Vazquez-Claudio at 118. As noted above, the Board has not found that the Veteran's PTSD symptoms clearly warrant a 50 percent rating but that his symptomatology more nearly approximates a 50 percent rating as compared to the originally assigned 30 percent rating under 38 C.F.R. § 4.130. As detailed above, the Veteran's PTSD is essentially manifested by anxiousness, nightmares, intrusive thoughts, irritability, hypervigilance, isolation, decreased interest, sleep impairment, difficulty concentrating, and intermittent panic attacks. His documented exacerbation of depressive/mood related psychiatric symptoms with suicidal thoughts/threats, to include the reported GAF of 40 (reflective of major impairment), have been associated with his pain-related physical problems. A documented suicide threat in March 2012 was identified by the Veteran's spouse as being caused by frustration and that the Veteran otherwise would not harm himself. Otherwise, VA examinations of the Veteran along with his outpatient VA treatment records have reflected essentially normal mental status evaluations. Furthermore, the Veteran does have good social interactions, albeit limited, with others in group therapy and with his own family. As such, since the initial grant of service connection, the Board does not find the Veteran's PTSD results in occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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/or an inability to establish and maintain effective relationships. Therefore, taking into the subjective and objective symptomatology, a rating to 70 percent for PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411 has not been shown. Also, since the initial grant of service connection, the Board does not find, per the subjective and objective evidence discussed, that the Veteran's PTSD results in 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 ability 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. Therefore, a rating to 100 percent for PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411 has not been shown. The above determination is based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's PTSD has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2013). The symptoms of the Veteran's PTSD, as discussed above, have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In its August 2010 remand, the Board referred the issue of a total disability rating based upon individual unemployability (TDIU) to the AMC for consideration. No action was taken by the AMC. In the September 2012 IHP, the Veteran's representative argued that the Veteran was unemployable due solely to his service-connected PTSD. The United States Court of Appeal for Veterans Claims (Court) has held that a request for TDIU, either expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of an initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based is already service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). The question of TDIU entitlement may be considered as a component of an appealed increased rating claim if the TDIU claim is based solely upon the disability or disabilities which are the subject of the increased rating claim. If the Veteran asserts entitlement to a TDIU rating based in whole or in part on other service-connected disabilities which are not the subject of the appealed RO decision, the Board lacks jurisdiction over the TDIU claim (except where appellate jurisdiction is assumed in order to grant a benefit). See 38 C.F.R. 19.13(a) (2013); VAOGCPREC 6-96. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As noted above, the Veteran has alleged that he is unemployable due only to his service-connected PTSD. The Veteran's service-connected PTSD, as per the Board's decision, is found to warrant a 50 percent disability rating. Thus, the Veteran does not meet the schedule requirements for a TDIU under 38 C.F.R. § 4.16(a). Consequently, the only remaining question in this case is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD for purposes of a possible extra-schedular evaluation. 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225, 229 (1993) (Court remanded TDIU claim for Board to provide reasons or bases where Board had not given extra-schedular consideration to the claim). The Board emphasizes that entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). The factors with respect to a TDIU extra-schedular rating merely requires a determination that a particular Veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disability or disabilities. See VAOPGCPREC 6-96. With that said, the Board itself cannot assign an extra-schedular rating in the first instance. The Board must consider whether to refer a case to the Director of Compensation and Pension (C&P) Services for an extra-schedular evaluation. In the present case, the Board does not find that referral to the Director of Compensation and Pension is warranted. The evidence of record, as discussed above, reflects that the Veteran's inability to work is the result of his physical conditions, in particular, his left leg and foot disability, and not his service-connected PTSD. In particular, during his treatment at the VAMC Salem in August 2004, the Veteran was noted to complain of severe pain in his left lower leg and that he was interested in having his leg treated and returning back to work. In the January 2009 report of VA PTSD examination, the examiner specifically commented that the Veteran's physical problems were the reason for his inability to work. Other than the issue having been raised by the Veteran's representative in the September 2012 IHP, the Veteran himself has not alleged that his service-connected PTSD has rendered him unemployable. Therefore, the Board finds that the Veteran's PTSD does not preclude him from performing the physical and mental acts required by employment. Therefore, referral of the matter to the Director of Compensation and Pension for consideration of TDIU under 38 C.F.R. § 4.16(b) is not warranted. In sum, based on the evidence and analysis above the Board has found that an initial disability rating of 50 percent, but not more, is warranted for the service-connected PTSD. The Veteran's appeal is granted to that extent. Benefit of reasonable doubt has been resolved in favor of the Veteran. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102. ORDER An initial rating of 50 percent rating for PTSD is granted. subject to the laws and regulations governing the payment of monetary benefits. REMAND In September 2012, the Veteran's representative submitted medical literature which discussed the relationship between PTSD and physical health problems. In the above noted September 2012 IHP, the representative raised for the first time the theory that the Veteran's right knee disability, left knee disability, and disability of the left leg and foot were related on a secondary basis (proximately due to or aggravated by) to his service-connected PTSD. The Board notes that, a new theory of causation or a new theory of entitlement does not constitute a new claim. Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) (although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim). Because the Veteran has not been notified of what evidence is necessary to substantiate a claim of entitlement to service connection on a secondary basis, a remand is necessary to allow the agency of original jurisdiction (AOJ) the opportunity to provide the Veteran with appropriate notice with regard to this theory of entitlement. Furthermore, in an undated VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs (VA)), apparently received in March 2004, the Veteran appears to identify that he received VA treatment in West Virginia in 1983 and/or 1984. In an October 2004 notice letter, the RO commented: You mentioned treatment at Huntington, West Virginia, VA Medical Center. Give us the dates of treatment and we will request the records. In a subsequent October 2004 statement, the Veteran made reference to his history of treatment, to include from the Huntington VAMC, but did not identify the dates of such treatment. No records from the Huntington VAMC are associated with the claims folders. It is unclear to the Board if the Veteran did receive VA treatment for his disability of the left lower leg and foot in 1983/84. In light of this remand for the development above, the AOJ should again request the Veteran identify whether he received VA treatment for his left leg and foot in West Virginia in 1983 or 1984 or at the Huntington VAMC. Records of any identified treatment should be obtained, to include retired/archived records, if appropriate. Accordingly, the case is REMANDED for the following action: 1. The AOJ should issue the Veteran a notice letter advising him how to substantiate claims of entitlement to service connection for a right knee disability, for a left knee disability, and for a disability of the left leg and foot on as secondary basis to his service-connected PTSD. 2. Request that the Veteran identify the dates of any treatment he received at the VAMC in Huntington, West Virginia, for his left leg and foot. Also, request that the Veteran clarify whether he was treated for his left leg and foot in 1983 and/or 1984 at a VA medical facility in West Virginia. Records of any identified treatment should be obtained. Any search for VA records must include a search of retired/archived records, if appropriate. If any records are unavailable, or the search for them otherwise yields negative results, this fact must be documented in the claims folders and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2), (e)(1). 3. Obtain the Veteran's most recent VA treatment records dated since April 2012. Any records obtained should be associated with the claims folders. 4. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the issues remaining on appeal, to include as secondary to the Veteran's service-connected PTSD. All evidence of record should be considered, including the literature submitted by the Veteran's representative in September 2012 with respect to the health effects of PTSD. If any of the benefits sought are denied, the Veteran and his representative must be provided an SSOC and given an opportunity to respond before the case is returned to the Board for appellate review. The Veteran 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 remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs