Citation Nr: 1332889 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-37 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for right thalamic intracerebral hemorrhage (stroke), claimed as secondary to hypertension. 3. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 4. Entitlement to a total rating based upon individual unemployability based upon service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The veteran had active service from June 1967 to June 1969. The Veteran received the Combat Infantryman Badge (CIB), among other awards and decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). By a rating decision prepared in June 2008, the RO denied service connection for hypertension and for right thalamic intracerebral hemorrhage (stroke), claimed as secondary to hypertension. Also on appeal is an October 2007 rating decision that granted service connection for PTSD and assigned a 10 percent rating. The Veteran disagreed with the initial rating in November 2007. By a rating decision issued in September 2009, the RO increased the initial rating to 50 percent, effective as of the date of claim for service connection for PTSD. The Veteran continued to disagree with the assigned initial rating. The record on appeal, including the electronic (Virtual VA) claims file, does not include a timely substantive appeal following the issuance of an April 2011 statement of the case (SOC) addressing the claim for an increased initial evaluation for PTSD. However, the electronic Veterans Appeals Control and Locator System (VACOLS) includes an entry showing that a timely substantive appeal was entered in May 2011. The Board ruled, at the Veteran's August 2013 hearing, that it would consider the claim for an increased initial evaluation for PTSD as if a timely substantive appeal were of record. In July 2009, the RO denied a claim for TDIU. The RO thereafter addressed the Veteran's claim for an increased initial rating for PTSD in a September 2009 rating decision, and the Veteran continued to disagree with the initial rating for PTSD. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. As the September 2009 rating decision which assigned an initial 50 percent rating for PTSD did not become final, the July 2009 denial of entitlement to an award of TDIU did not become final. For the reasons set forth in Rice, the TDIU claim remained open, and the Board has jurisdiction to review the claim. Therefore, it is listed on the title page of this decision. The veteran requested a Travel Board hearing. The requested hearing was conducted by the undersigned Veterans Law Judge in August 2013. The Veteran and his spouse testified, with DB as an observer. The transcript of that hearing is electronically associated with the claims file. The veteran submitted additional evidence pertinent to the appeal. In addition, VA treatment records pertaining to treatment since the statement of the case (SOC) was issued in April 2011 have been associated with the claims file. VA regulations require that pertinent evidence submitted by the appellant or associated with the file must be referred to the agency of original jurisdiction for review and preparation of a SSOC unless this procedural right is waived in writing by the appellant. 38 C.F.R. §§ 19.37, 20.1304 (2013). The appellant provided a written waiver of review by the agency of original jurisdiction. Appellate review may proceed. The claim of entitlement to an initial rating in excess of 70 percent from May 2, 2008, for PTSD 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. During an August 2013 hearing before the Board, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal for service connection for hypertension and his appeal for service connection for right thalamic intracerebral hemorrhage (stroke), claimed as secondary to hypertension. 2. The Veteran's symptoms of PTSD prior to May 2, 2008, include depression, mood swings, anger, irritability, memory loss, disturbances of sleep, among other symptoms, but the Veteran remained independent in activities of daily living, was gainfully employed, and did not manifest gross impairment in thought processes or communication, grossly inappropriate behavior, or persistent danger of hurting himself or others. 3. From May 2, 2008, the medical evidence is in equipoise to warrant a finding that the Veteran is unable to obtain or retain substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's substantive appeals for service connection for hypertension and for right thalamic intracerebral hemorrhage (stroke), claimed as secondary to hypertension, have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). 2. The criteria for a 70 percent initial evaluation for PTSD are met through May 2, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code 9411 (2013). 3. The criteria for entitlement to TDIU have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of appeals for service connection for hypertension and stroke Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In October 2009, the Veteran perfected appeal of claims for service connection for hypertension and a stroke. In an August 2013 written statement, the Veteran withdrew his appeals regarding those claims for service connection. The Veteran confirmed that request to withdraw the appeals during his August 2013 hearing before the Board. Both actions were taken prior to promulgation of a decision on appeal. With no allegation of error of fact or law remaining before the Board as to the claims for service connection for hypertension and for a stroke as secondary to hypertension, the Board does not have jurisdiction to review those claims. The appeals for service connection for hypertension and for right thalamic intracerebral hemorrhage (stroke), claimed as secondary to hypertension, are dismissed. Claims addressed on the merits The Veteran contends that he is entitled to a higher initial evaluation for his PTSD and contends that he is entitled to TDIU. Before assessing these two claims on the merits, VA's duties to notify and assist must be examined. VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Here, the veteran is challenging an initial evaluation assigned following the grant of service connection for PTSD. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims held that in cases where 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. Id. at 490-91. Thus, because the notice that was provided before the grant of service connection was sufficient to allow the Veteran to substantiate his claim, VA's duty to notify as to that claim has been satisfied. Similarly, as the claim for TDIU has been granted, beginning the first day on which the Veteran did not perform substantially gainful employment, it would be adverse to the Veteran's interests to take any further action to notify the Veteran. No further discussion of the duty to notify the Veteran is required. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). The duty to assist does not apply to the withdrawals of appeals, because the Veteran's right to request such action is a matter of statutory interpretation. As the claim for TDIU has been granted to the full extent authorized by law, there is no further duty to assist as to that claim. As to the claim for an increased initial rating for PTSD, prior to May 2, 2008, the Board observes that service treatment records were associated with the claims file before service connection for PTSD was granted. The Veteran was afforded VA examination during the relevant period. VA treatment have been associated with the claims file, and the Veteran has, as noted in the Introduction, waived consideration of those records prior to Board review. He has obtained opinions from VA providers. He has testified on his own behalf. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The August 2007 VA examination is more than adequate as it involved a review of the claims file, interview of the Veteran, and a comprehensive mental status evaluation. Rationale was provided with the opinion. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that an individual who chairs a Veteran's hearing before the Board to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this case, the issues on appeal were correctly identified, and there was discussion of the Veteran's desire to withdraw two issues. The Veteran's testimony as to symptoms of PTSD and industrial impairment he attributed to PTSD was elicited at the hearing. See Transcript, August 2013 hearing. The duties under 38 C.F.R. § 3.103 have been met. The claims file reflects that the Veteran began receiving Social Security Administration (SSA) disability benefits in November 2008. However, the SSA records associated with the claims file are very limited. No additional SSA records are required for the decision below, as the claim for TDIU has been granted, and the Veteran has not indicated that he was examined by SSA prior to May 2, 2008. All of the Veteran's treatment for service-connected PTSD prior to May 2, 2008, was provided by VA. The VA records have been obtained, so no prejudice to the Veteran results from the lack of SSA's copies of the Veteran's VA treatment for PTSD prior to May 2, 2008. Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of the claims addressed on the merits herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. 1. Claim for increased initial evaluation in excess of 50 percent for PTSD Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. 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 sole on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. If two evaluations are potentially applicable, 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. 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. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28. The VA rating schedule provides that psychiatric disorders (other than eating disorders), including PTSD, are to be evaluated according to a General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under that formula, a 50 percent rating is warranted for 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-term 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 may be assigned where 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; obsessed 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. A 100 percent rating is warranted where 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms and manifestations listed under the rating formula are not requirements for a particular evaluation, but are examples providing guidance as to the type and degree of severity of these symptoms. Consideration also must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). A GAF score of between 41 and 50 denotes 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. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). A score of 51 through 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. Facts In 2006, the Veteran was hospitalized and found to have suffered a cerebral hemorrhage (cerebrovascular accident, or CVA). At that time, he was gainfully employed as a manager for AT&T (Bell South). He returned to work after rehabilitation. In 2007, the Veteran sought service connection for PTSD. He reported that, after his CVA, his symptoms of PTSD, including depression, flashbacks, hypervigilance, and startle reflex, became more noticeable. The Veteran reported that, prior to his CVA, he was able to keep very busy and stave off thoughts of suicide. He reported that, if he started to have a flashback, he would chop wood. Now, he could no longer perform such activities, and was having more difficulty avoiding those thoughts. The examiner did not assign a GAF score. A VA psychiatric examination was conducted in August 2007. At that time, the Veteran was oriented within normal limits. His appearance and hygiene was appropriate. He was very tremulous and his affect and mood were depressed. He endorsed episodes of depression three times a week and panic attacks once per week. While his speech and concentration were within normal limits, the Veteran's ability to communicate was grossly impaired. He had poor eye contact. He denied a history of delusions, hallucinations, or suicidal or homicidal ideation. He described some obsessional rituals such as washing his hands a lot. The Veteran's thought process, judgment, abstract thinking, and memory were all within normal limits. A GAF score of 70 was assigned. The examiner opined that the symptoms of the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. In a March 2008 statement, the Veteran's treating VA neurologist stated that the Veteran was unable to continue working as a result of the neurological effects of his stroke and his co-morbid disorders, including anxiety, depression, and high blood pressure. In March 2008, another treating physician noted that, given the stresses of the Veteran's work, the Veteran's ongoing difficulties with left hemiparesis and his PTSD resulted in inability to meet the work stresses, and the Veteran could not continue working even though the employer had made adaptations. In August 2008, the Veteran's clinical social worker and psychiatrist sent in a medical statement in which they specified that the Veteran was unable to work because of the severity of his PTSD symptoms, and specified that his GAF score was 48. The records reflect that the Veteran medical retired in early May 2008. The Veteran submitted a claim for TDIU, in which he indicated that he last worked in May 2008. SSA records which would establish the last date on which the Veteran performed or was paid for substantially gainful employment are not of record. The Veteran and his providers have uniformly reported that he worked until sometime in May 2008. The record establishes that the Veteran worked at least one day in May 2008. Interpreting the evidence in the light most favorable to the Veteran, the Board concludes that the Veteran worked at least through May 1, 2008. Analysis The Veteran's PTSD symptoms have not been so severe at any time during the pendency of this claim as to result in total social impairment. The Veteran has remained able to maintain his relationships with his close family and continues to appear for medical appointments and participate in his health care independently. The Veteran independently performed self-care and engaged in activities of daily living, with occasional reminders from his spouse, during the relevant period. As the Veteran continued to work through at least May 1, 2008, he did not manifest total occupational impairment or complete inability to maintain work relationships. The Veteran's providers suggest that the Veteran demonstrated both short-term and long-term memory loss prior to May 2, 2008. However, on examination, his memory was within normal limits. The evidence demonstrates that the Veteran's PTSD results in no more than occasional interference with the Veteran's ability to function independently. However, the evidence reflects serious reduction of reliability and occupational capability, leading to the Veteran's medical retirement in early May 2008. As such, the evidence warrants a 70 percent rating for PTSD. The Veteran's providers agree that, although he has periods of irritability or unprovoked anger and thoughts about suicide, he is not a persistent danger to himself or others. However, the evidence suggests that such symptoms are of increasing severity. The fact that he does have periods of unprovoked irritability and continuous disturbance of motivation and mood and some obsessional behavior is more consistent with the criteria for a 70 percent evaluation. The Veteran's verbal communication was adequate to allow communication with his providers during the relevant period. His speech was described as being normal on examination in August 2008. In fact, the Veteran was able to testify on his own behalf at his August 2013 hearing before the Board. His testimony and responses indicate some difficulty participating in discussion of complex issues, but demonstrate that his speech is not illogical or irrelevant, so as to show total impairment. The medical evidence establishes that the Veteran manifested essentially continuous depression during the period addressed in this decision. A GAF score of 48 was assigned by two treating providers in March 2008. That GAF score is consistent with the low range of moderate symptoms of PTSD or the high range of severe symptoms. As the providers described the Veteran's symptoms as "severe," rather than moderate, the Board finds that the evidence is consistent with a 70 percent evaluation. Considering the evidence as a whole, the Board finds that there is some evidence consistent with a 50 percent evaluation for PTSD, prior to May 2, 2008, and some evidence consistent with a 70 percent evaluation. The evidence of the higher severity is at least in equipoise with evidence of lesser severity of the Veteran's symptoms of PTSD, and so is at least in equipoise to warrant a 70 percent initial evaluation during the period prior to May 2, 2008. However, the Veteran does not meet the criteria for a total schedular evaluation prior to May 2, 2008. In particular, the evidence establishes that the Veteran did not manifest gross impairment in thought processes, as he was able to continue to seek medical care and participate in therapy. He did not manifest gross impairment in communication, so as to warrant a total schedular evaluation. The Veteran remained able to communicate with his family, medical providers, and others. This evidence is unfavorable to assignment of a total schedular evaluation prior to May 2, 2008. No clinical provider indicated that the Veteran has persistent delusions or hallucinations. Although his wife testified that he sometimes manifested inappropriate behavior, such as saying something he would not normally say, she did not characterize his behavior as "grossly" inappropriate. No provider has opined that grossly inappropriate behavior was observed prior to May 2, 2008. The Veteran manifested anger and irritability, but not a persistent danger of hurting himself or others. It was observed that he sometimes forgot to perform routine hygiene activities, but there was no observed inability to maintain at least minimal personal hygiene. The Veteran was able to remember his name, occupation, and close family members. He did not meet the schedular criteria for a total schedular rating prior to May 2, 2008. The Board fully recognizes that the listed symptoms for a 100 percent schedular rating are not all encompassing and their presence is not necessarily determinative. However, the Veteran's symptoms must cause the occupational and social impairment in the referenced areas. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Such was not shown. The totality of the evidence fails to support the assignment of a 100 percent rating for PTSD for the period prior to May 2, 2008. 2. Consideration of a total rating prior to May 2, 2008, on an extraschedular basis The Board itself cannot assign an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Since the Board itself cannot assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case to the Director of Compensation and Pension (C&P) Services for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). 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 reasonably describe the Veteran's disability level and symptomatology, then the assigned schedular evaluation is adequate. Referral for extraschedular consideration is not required, and the analysis stops. Id. All of the Veteran's described symptoms of PTSD during the relevant period, including depression, anxiety, memory loss, occasional disorientation, impaired impulse control, mood disturbances, impairment in judgment, and other described symptoms, are encompassed within the rating criteria for a 70 percent evaluation. The evidence is devoid of description of any symptom not encompassed within the initial 70 percent evaluation assigned above during the relevant period. The evidence does, as noted above, include some evidence which is favorable to a 70 percent rating, and some evidence that no more than a 50 percent evaluation is warranted. Reasonable doubt as to severity has been decided in the Veteran's favor to assign the 70 percent evaluation, but there is no reasonable doubt as to whether any symptoms not encompassed in the rating criteria for the 70 percent evaluation, or a lower evaluation, has been described by the Veteran or observed by any clinical provider. 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. In this case, the Veteran was not hospitalized for treatment of PTSD during the relevant portion of the appeal period. There is no evidence which requires referral of the claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1). The threshold determination for a referral for extraschedular consideration is not met and, consequently, the Board finds that the Veteran is not entitled to referral for an extraschedular rating for PTSD during the period prior to May 2, 2008. Thun, 22 Vet. App. at 115. 3. Claim for TDIU A Veteran may be awarded TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.26. Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or the impairment caused by any non service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). 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). In this case, as the Veteran meets the criteria for a 70 percent evaluation for PTSD, he meets the schedular criteria for consideration of entitlement to TDIU. The Board notes that the Veteran has also been granted service connection for hearing loss, evaluated as noncompensable, and for tinnitus, evaluated as 10 percent disabling. In August 2008, the Veteran submitted an opinion signed by two providers indicating that he was unable to work as a result of his PTSD beginning in May 2008. That statement was accepted as a claim for TDIU. The providers indicated that the Veteran was unable to cope with stress as a result of his PTSD, and was therefore unable to work. As noted above, the statements have been interpreted, in the light most favorable to the Veteran, as showing that the Veteran worked through May 1, 2008. TDIU benefits, by definition, are authorized by law only for a Veteran who is unemployable. As the Veteran was employed through May 1, 2008, he is, by the terms of the regulation, not entitled to an award of TDIU while actually employed. In August 2013, the Veteran submitted a VA medical opinion which states that the Veteran had been unable to work since 2008 as a result of PTSD. The VA opinion indicates that, because of symptoms such as irritability and inability to follow complex commands, the Veteran would be unable to perform any type of employment. There are medical statements from three VA providers indicating that the Veteran is unable to work as a result of PTSD symptoms. These opinions are favorable to the claim for TDIU. There are also two VA medical statements indicating that the Veteran is not employable as a result of a combination of his service-connected PTSD and disorders for which service connection is not in effect. This evidence is unfavorable to the claim, since entitlement to TDIU is based on industrial impairment due solely to service-connected disabilities. The Board recognizes that the agency or original jurisdiction will, as directed in the Remand, below, be considering assignment of an initial evaluation in excess of 70 percent for PTSD. In general, the TDIU claim would be remanded along the claim for a higher initial rating. However, in this case, even without consideration of the total schedular rating for PTSD, the Veteran meets the schedular criteria for a TDIU rating. See 38 C.F.R. § 4.16(a). To ensure his entitlement to at least a TDIU rating as expeditiously as possible, a TDIU rating is granted. There is no prejudice in considering the TDIU rating at this time. The evidence is at least in equipoise to warrant a finding that the Veteran's inability to engage in gainful employment since May 2, 2008, is due to his service-connected disabilities. As the favorable evidence preponderates against the unfavorable evidence, the claim may be granted from that date. (CONTINUED NEXT PAGE) ORDER The appeal for service connection for hypertension is dismissed. The appeal for service connection for right thalamic intracerebral hemorrhage (stroke), claimed as secondary to hypertension, is dismissed. An increased initial evaluation from 50 percent to 70 percent for PTSD is granted, prior to May 2, 2008, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. The appeal for TDIU from May 2, 2008, is granted, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. REMAND The Veteran was last afforded VA psychiatric examination in 2009. The Veteran and his wife have testified that his symptoms of PTSD have increased in severity since that time. Given the length of time since the Veteran's PTSD disability was last evaluated, and his contention of a worsening of his service-connected PTSD, additional examination is required. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Further, any pertinent outstanding VA treatment records must also be obtained and associated with the claims folder. More complete SSA records should be obtained as well. The Veteran submitted evidence that he was unable to continue working as of May 2008, due to PTSD. As unemployability is one of the criteria for a total schedular rating, the Veteran's entitlement to a total schedular rating must be considered. The fact that TDIU has been granted from May 2, 2008, does not render such consideration meet. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be advised that evidence related to his retirement, or statements from supervisors or fellow employees as to the reason(s) for his retirement, would be relevant to his claim for an increased initial evaluation in excess of 70 percent for PTSD. 2. The Veteran should be afforded the opportunity to identify VA and non-VA providers who have treated him for PTSD since May 2, 2008. An attempt to obtain and associate with the claims folder or electronic folders any identified records should be documented. 3. The Veteran's complete records from SSA should be sought. 4. Upon completion of the above development, the Veteran should be afforded an examination in order to determine the severity of his service-connected PTSD from May 2, 2008. The claims folder with a copy of this remand must be made available to the examiner for review in conjunction with the examination. All necessary tests and studies, including appropriate psychological studies (if determined to be necessary by the examiner), should be conducted in order to identify and describe the symptomatology attributable to the Veteran's service-connected disability. The results of any tests or studies must be included in the examination report. The report of examination should contain a detailed account of all manifestations of the disability found to be present. The examiner must also comment on the extent to which the Veteran's PTSD affects occupational and social functioning since May 2008, to include whether PTSD results in total social and occupational impairment. The report of examination must include a complete rationale for all opinions expressed. 5. The examination report should be reviewed to ensure it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After undertaking any other development deemed appropriate, the RO should re-adjudicate the PTSD issue on appeal. If any benefit sought is not granted, the Veteran, and his representative, must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by the RO. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs