Citation Nr: 1333882 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 12-10 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for service-connected post traumatic stress disorder (PTSD), prior to March 15, 2003, and 70 percent thereafter. 2. Entitlement to a total disability rating based on individual employability due to service-connected disabilities (TDIU), prior to March 15, 2013. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which granted service connection for PTSD. The Veteran had a hearing before the undersigned Acting Veterans Law Judge in August 2012. A transcript has been associated with the claims file. Reviewing the procedural history of this matter, the Veteran filed a claim for entitlement to service-connection for PTSD in January 2009, which was granted in May 2011 and assigned a 50 percent rating. In August 2011, the Veteran filed a Notice of Disagreement (NOD) with the May 2011 rating decision, and additionally stated his intent to file a claim for TDIU based on his service-connected disabilities. In March 2012, the RO issued a Statement of the Case (SOC) denying a higher rating and TDIU. The Veteran perfected his appeal, and in December 2012, the Board remanded the Veteran's claims for further development, which has been completed. In a June 2013 rating decision, the VA Appeals Management Center (AMC) in Washington, D.C. increased the Veteran's disability rating for service-connected PTSD to 70 percent, and additionally granted the Veteran's claim of entitlement to TDIU, each effective March 15, 2013. Although the AMC granted entitlement to TDIU, the March 2012 Statement of the Case linked the issue of TDIU to the issue of entitlement to an initial rating in excess of 50 percent for PTSD. Given that the grant of TDIU did not return back to January 8, 2009, the effective date of the initial grant of service connection for PTSD, the Board will continue to view the claim of entitlement to an initial rating in excess of 50 percent for service-connected PTSD to include entitlement to TDIU as one issue. The Board notes that a claim for a higher initial rating is a claim for the highest possible benefit unless the Veteran explicitly states otherwise. AB v. Brown, 6 Vet. App. 35, 38 (1993). Although the Veteran indicated in the August 2011 NOD and in an August 2013 statement that he wished his PTSD to be evaluated as 70 percent disabling, the Veteran's representative contended in his September 2013 Informal Hearing Presentation (IHP) that the Veteran's symptoms demonstrate that he is entitled to a 70 percent or higher rating for PTSD, as well as TDIU due to his service-connected disabilities, earlier than the assigned effective date of March 15, 2013. The IHP also states that the RO failed to concede that a combination of symptoms could be shown to substantiate a 100 percent rating. These statements strongly suggest that the Veteran is not satisfied with the initial 50 percent rating assigned for his PTSD to include TDIU, as well as the current 70 percent rating assigned for PTSD. The Board has thus characterized the issues on appeal accordingly. 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). FINDINGS OF FACT 1. Throughout the appellate time period, the Veteran's PTSD has been manifested by symptoms such as irritability and difficulty managing anger including angry outbursts, sleep disturbance, depression most days out of the week, anxiety and nervousness on a regular basis, limited close interpersonal relationships, hypervigilance leading to avoidance of crowded situations, suicidal ideation, and occupational and social impairment with deficiencies in most areas. 2. At no time during the appeal period has the Veteran demonstrated total occupational and social impairment due to his service-connected PTSD. 3. The Veteran's service-connected PTSD renders him unable to secure or follow a substantially gainful occupation without consideration of nonservice-connected disorders or other service-connected disabilities that are not on appeal as of May 5, 2011, but not earlier. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 70 percent, but no higher, for PTSD have been met for the period from January 8, 2009 until March 15, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2013). 2. The criteria for an evaluation in excess of 70 percent have not been met for the period beginning on March 15, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2013). 3. The criteria for entitlement to TDIU were not met prior to May 3, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.3, 4.6, 4.16 (2013). 4. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to TDIU have been met from May 3, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.3, 4.6, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Remand Compliance As noted above, this appeal involves a December 2012 Board remand for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008), citing Dyment v. West, 13 Vet. App. 141, 146-147 (1999). In this case, the Board finds that the RO substantially complied with the Board's December 2012 remand instructions. The instruction to provide the Veteran with notice explaining the need for additional evidence regarding claims for an initial disability rating in excess of 50 percent for PTSD and for a TDIU was satisfied by way of letters sent to the Veteran in January 2013. The Veteran was additionally provided a VA 21-4142 release form and asked to identify on the release any private or VA medical providers who have provided psychiatric treatment since May 2012. The instruction to schedule the Veteran for a VA examination to determine the symptoms and current severity of his service-connected PTSD was completed in May 2013. The claims file was made available to and reviewed by the examiner. All signs and symptoms of the service-connected psychiatric disorder were reported. The examiner also described the impact of the Veteran's psychiatric disability on his occupational and social functioning, and specifically opined as to whether the Veteran's PTSD renders him incapable of obtaining and maintaining gainful employment. The examiner also provided a multi-axial diagnosis and assigned a Global Assessment of Functioning (GAF) score, providing a detailed description of the Veteran's symptoms. II. Veterans Claims Assistance Act of 2000 VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of 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 warranted. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The VCAA applies to the instant claim. The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). 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); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the instant case, the VCAA duty to notify was satisfied by way of a letters sent to the Veteran in January 2011, August 2011, and July 2013. The letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letters also informed the Veteran of how ratings, increased evaluations, and effective dates are determined. As noted above, the Veteran was also afforded a hearing before the undersigned Acting Veterans Law Judge (VLJ) during which he presented oral argument in support of his claim. 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) (2013) requires that the VLJ or Decision Review Officer who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Acting VLJ fully explained the issue on appeal during the hearing and specifically suggested the submission of evidence, including a new VA examination, that would be beneficial to the Veteran's claim. Significantly, neither the Veteran nor his representative have 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. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the Acting VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service and VA treatment records and associated them with his claims file. In addition, VA afforded the Veteran adequate examinations in February 2011, March 2013, and May 2013. The examination reports are thorough and supported by the other evidence of record. The examination reports discussed the clinical findings and the Veteran's reported history as necessary to rate his disability under the applicable rating criteria. The examination reports also discussed the impact of the disability on the Veteran's daily living. Based on the examinations, the absence of evidence of worsening symptomatology since the most recent examination, and the contemporaneous nature of the examinations as to the present appeal, the Board concludes the examination reports in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. §3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. III. Analysis Criteria Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case with respect to the Veteran's claim for increased initial rating of his PTSD to include entitlement to TDIU, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. As discussed above, currently the Veteran's disability rating for PTSD is 50 percent from January 8, 2009 to March 14, 2013, and 70 percent from March 15, 2013. The Veteran was granted entitlement to TDIU effective March 15, 2013. His disability rating for service-connected malaria is 0 percent from July 20, 1995. The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders, DC 9411. Under DC 9411, a 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent evaluation is warranted 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; obsessional rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation 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. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition of the American Psychiatric Association (DSM-IV). That portion of VA's Schedule for Rating Disabilities (Schedule) that addresses service-connected psychiatric disabilities is based upon DSM-IV. 38 C.F.R. § 4.130. The DSM-IV contains a GAF scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. GAF scores ranging between 61 and 70 are assigned when there are 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed., 1994). GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. GAF scores ranging between 41 and 50 are assigned when there are 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). Id. PTSD In August 2010, the Veteran underwent a VA psychiatric intake examination. The Veteran was diagnosed with PTSD and given a GAF score of 55. The examiner found that the Veteran displayed or reported the following symptoms: avoidance of places, inability to recall or amnesia for certain aspects of the trauma, diminished interest or participation in significant activities, feelings of detachment or estrangement from others, restricted range of affect (unable to experience tenderness, loving feelings), physiological reactivity to exposure to cues, getting anxious, hyper vigilant, nervous, and increased heart rate. He also reported difficulty concentrating and paying attention. The treating psychiatrist described the Veteran's affect as sad, dysphoric, and intermittently tearful as he related details of his military experience. She further observed his cognition as grossly intact, and that he was alert and oriented to person, place and time. The Veteran's speech was spontaneous, with pressure and volume within conversational range, and a linear and goal directed thought process. He denied perceptual disturbances, paranoia, or delusional thinking, as well as suicidal or homicidal ideation. The Veteran received ongoing treatment with VA for his PTSD and other psychiatric problems. In December 2010, the Veteran attended a follow up appointment at the Kansas City VA Medical Center (VAMC). He was given a diagnosis of PTSD and depressive disorder. He presented with dysphoric and congruent affect and mood, and decreased eye contact. The Veteran denied perceptual disturbances, paranoia, or delusional thinking, as well as suicidal or homicidal ideation. He reported that he sleeps in increments of 2 to 3 hours, interrupted by nightmares at least 4 to 5 times per week. He endorsed feelings of sadness and anhedonia, noted as likely worsened by the holiday season. His speech was spontaneous, with decreased pressure and volume with linear and sequential thought process. VA treatment records show that the Veteran regularly attended the Anger and Relationship Conflicts Group at the Kansas City VAMC from December 2010 to January 2011. The Veteran was afforded a VA examination for PTSD in February 2011. During the course of the examination, the Veteran reported having panic attacks, nightmares, sleep disturbances, being irritable, and being depressed on most days. The examiner conducted a mental status examination and reported that the Veteran was alert, oriented, and cooperative, and maintained reduced eye contact, often keeping his eyes averted. He further noted that the Veteran's thought process was goal-directed and thought content was without auditory or visual hallucinations or suicidal or homicidal ideation. The Veteran presented with a dysphoric and anxious mood and depressed affect, and was teary-eyed during much of the examination. He interacted and responded in a logical manner, did not display any inappropriate behavior, and had satisfactory maintenance of personal hygiene and other basic activities of daily living. The Veteran did not display any obsessive or ritualistic behavior. The Veteran reported subjective concentration complaints of mind wandering and distraction. The examiner noted that the Veteran performed adequately on the concentration screening, but later observed evidence of problematic concentration on evaluation. The Veteran reported subjective memory complaints including difficulty remembering names and a need to leave things in a specific place so he will not lose things. He scored 3 out of 3 on both immediate memory and delayed memory screenings. The Veteran reported experiencing panic attacks from 1 to 4 times per week, and further stated he experiences depression most days out of the week with sadness, decreased interest in activities, dysphoria, tearfulness, and difficulty making decisions. The Veteran also reported experiencing anxiety on a regular basis to include mood, nervousness, excessive worry, irritability, and problems concentrating. The examiner noted evidence of depression and anxiety during the evaluation, and indicated that he had okay impulse control. The Veteran additionally stated that he has difficulty sleeping on a regular basis, generally being able to sleep no longer than 3 hours at a time, and getting no more than 6 total hours of broken sleep per night. He has nightmares 3 to 5 times per week during which he moans, groans, twitches, and awakes startled. In further describing Veteran's symptoms for purposes of satisfying DSM-IV criteria, the examiner stated the Veteran also displays markedly diminished interest or participation in significant activities, feeling of detachment or estrangement from others, restricted range of affect, intrusive memories, difficulty concentrating and paying attention, exaggerated startle response in reaction to loud, sudden noises or unfamiliar sounds, intense psychological distress at exposure to cues, physiological and reactivity on exposure to cues. The Veteran was diagnosed with PTSD with depression and assigned a GAF score of 55. The examiner opined that the Veteran's PTSD is as likely as not caused by or a result of the traumatic experiences that occurred during his service in Vietnam. The examiner noted that the Veteran's PTSD impacted his social functioning. Specifically, the examiner stated that his symptoms included irritability and difficulty managing anger including angry outbursts, marital conflict due in part to verbal and physical aggression and social avoidance, depression most days out of the week, sleep disturbance that exacerbates depression during the day, anxiety and nervousness on a regular basis, limited close interpersonal relationships due in part to social withdrawal and emotional detachment, hypervigilance that leads to avoidance of crowded situations, and substance abuse likely as an attempt to manage mental health symptoms. The Veteran also reported that he had occasionally experienced suicidal ideation during the time period between his filing of his claim in January 2009 and the February 2011 VA examination. With respect to the impact of the Veteran's symptoms on his occupational functioning, the examiner stated that the Veteran's symptoms have resulted in verbal altercations with co-workers and supervisors. He additionally noted that after discharge from service, the Veteran worked for over 30 years as a carpenter and continues to apply for jobs in the union. The Veteran reported he had not had a job since 2009. The examiner found that over the last 12 months the Veteran had not experienced absences or loss of employment related to mental health symptoms. A June 2011 psychiatric progress note reflects that the Veteran had been attending group therapy as recommended, but had to stop because of financial reasons. The examiner noted his affect and mood as dysphoric and congruent, with a downcast gaze during part of the interview. He endorsed some sadness and anhedonia, feeling lonely and reluctant. His speech was observed to be spontaneous with decreased pressure and volume with linear and sequential thought process. The Veteran denied suicidal or homicidal ideation, as well as perceptual disturbances, paranoia, or delusional thinking. He again was given diagnoses of PTSD and depression disorder. The claims file shows that the Veteran regularly attended the Combat PTSD Support Group, from July 2011 through September 2011. A September 2011 psychiatric progress note shows that the Veteran's affect and mood was dysphoric and congruent, with a downcast gaze during part of the interview. The Veteran reported he had been unable to hold down a job since 2009. He endorsed some sadness and anhedonia, which is relieved in part by his participation in support groups, where he reported he found some degree of camaraderie. His speech was spontaneous, with decreased pressure and volume with linear and sequential though process. The Veteran denied suicidal or homicidal ideation, as well as perceptual disturbances, paranoia, or delusional thinking. He was diagnosed with PTSD and given a GAF of 55. The claims file additionally reflects the Veteran has received individual psychotherapy from November 2011 to January 2013, addressing his PTSD. In a May 2012 psychiatry progress note from one of these sessions, the doctor noted that the Veteran reported he continues to have panic attacks about once per week and experiences hypervigilance in and out of the home. He reported frequent nightmares and intrusive memories, and being "terrified" of taking the bus. The Veteran additionally told the examiner that he previously had not been completely honest in his prior psychiatric sessions regarding the frequency of his suicidal thoughts out of fear of being hospitalized against his will. He reported having multiple periods since returning from Vietnam in which he had frequent thoughts about taking his life, including one time in 2009 when he "came close to" driving off the side of the highway. He clarified that he was not currently thinking about hurting himself and denied current suicidal or homicidal ideation intent or plan. He further stated that if his financial situation did not improve he would have to return to work, which he believes would cause him to become suicidal or homicidal due to his inability to work or otherwise be around other people. The examiner noted the Veteran had limited insight and judgment, with goal-oriented thought processes, no evidence of perceptual disturbances, congruent affect, speech and cognition within normal limits, guarded behavior, and an anxious mood. She diagnosed him with chronic PTSD and episodic cannabis use, and assigned a GAF score of 55. The examiner additionally made an administrative note stating that "within the past year," the Veteran's PTSD symptoms have worsened "and have been of a severity level that I believe would prevent him from obtaining or maintaining employment." In June 2012, the Veteran underwent a psychiatric review, in which he was shown to have a depressed mood, feelings of hopelessness and helplessness, poor concentration and forgetfulness, and an increase in irritability and interrupted sleep, though noted as a bit better than in the past. His eye contact, grooming, and hygiene were good, and demonstrated normal motor coordination and friendly cooperation. His thought content was preoccupied with ongoing trauma and had an "ok" and euthymic mood. His affect was stable and appropriate, and demonstrated good judgment and insight. He denied any suicidal or homicidal ideations as well as any auditory or visual hallucinations. No delusions were noted. In a June 2012 individual psychotherapy session, the Veteran reported an increase in hypervigilance and isolation at home. He also reported having panic attacks while driving, triggered by the thought of traffic and that he would be trapped. He stated that he feels more equipped to cope with his PTSD since learning about it and seeking treatment. He was dressed and groomed appropriately and demonstrated pleasant and talkative behavior. His eye contact and speech was within normal limits, with goal-oriented thought processes. He described his mood as anxious but more comfortable coming to the VA. His insight and judgment were observed to be limited, and cognition was within normal limits. The Veteran denied any current suicidal or homicidal ideation, intent or plan, and there was no evidence of perceptual disturbance. He was diagnosed with PTSD and given a GAF score of 55. In an August 2012 psychotherapy session, the Veteran reported an increase in panic attacks at the rate of 1 to 2 per week, with one recently experienced for a couple of hours. He stated that the panic attacks are triggered by trauma reminders at times while at other times they are uncued. He also reported concern of "jumbled thoughts" and was concerned about possible memory problems. The Veteran's hypervigilance results in daily struggles to focus his attention on anything other than his surroundings, and relayed an example where he saw a man walking behind him with a cane and the Veteran repeatedly looked behind due to thoughts that the man was following him and may hurt him. The examiner rendered diagnoses of PTSD, panic disorder without agoraphobia, and episodic use of cannabis abuse. She assigned a GAF score of 50. The Veteran attended a Travel Board hearing in August 2012. At the hearing he described symptoms of dizziness, anxiety, sleep problems, and depression as occurring daily. He additionally stated that he experiences panic attacks, suicidal thoughts, scrambled thoughts, nightmares, hypervigilance, loneliness, and anger. Notably, the Veteran stated that he thinks about suicide "all the time," and that when he was first asked whether he had any suicidal ideation when seeking VA treatment, he "was scare to talk about suicide" and withheld information about what he actually felt because he was afraid of being involuntarily hospitalized. He further stated that he has had thoughts of suicide for approximately ten years, and specifically described an incident while driving in which he nearly drove his car off the road to commit suicide and make it look like an accident. In August 2012, the Veteran was seen for a psychiatry referral. He reported that his anxiety symptoms had decreased a bit upon starting new medication, and that he has started to become a bit more comfortable talking with his medical provider regarding his trauma in service. The Veteran stated he continues to attend therapy which has brought up more feelings, but has helped him cope. He additionally stated that he continues to be hypervigilant and tries to mostly stay home as a result, as he has a hard time being in crowds or being around people. He does not attend church due to this problem and feels like the whole room is closing in on him when he is in a crowd. The Veteran reported that he still has nightmares involving violence. He tries to work out to work out his nervous energy and works in the yard. He denied any suicidal or homicidal ideation or auditory or visual hallucinations. The Veteran was given a mental status examination and was found not to be a suicide risk. He was cooperative and friendly, demonstrating fair hygiene and grooming. His affect was restricted, and his thought process was linear and goal-directed. His insight and judgment was fair, and he demonstrated fair to poor eye contact. He was diagnosed with PTSD, panic disorder without agoraphobia, and episodic use of cannabis abuse, and given a GAF score of 55. In September 2012, the Veteran reported having his worst panic attack to date while driving to his August 2012 travel Board hearing. On examination, he was in good mood, with a congruent affect. He showed no evidence of perceptual disturbance, and denied any current suicidal or homicidal ideation, intent or plan. His insight and judgment was fair, and cognition, speech, and eye contact was within normal limits. He was assigned a GAF score of 50. In October 2013, the Veteran displayed similar symptoms, and stated his sleep had improved with medication, which has given him more energy. He has been working out with weights and walking, as well as working in his yard. He denied any suicidal or homicidal ideation or visual or auditory hallucinations. He was given a GAF score of 60. In a January 2013 individual psychotherapy session, the Veteran reported experiencing bouts of dizziness and nausea for the entire month due to motion sickness. He also reported experiencing several panic attacks, with some triggered by combat related cues and others uncued. He endorsed having intrusive thoughts, severe nightmares, and strong emotional and physiological arousal when reminded of past traumas. He continued to endorse cognitive avoidance but noted he was able to talk with other veterans, which had proven a good experience. The Veteran reported problems with sleep, concentration, and hypervigilance. The Veteran's cognition, speech, and eye contact were within normal limits, and his mood and affect were fair. He displayed no evidence of perceptual disturbance and denied any current suicidal or homicidal ideation, intent, or plan. The examiner noted his judgment was good and insight fair. She diagnosed him with PTSD, panic disorder without agoraphobia, and episodic cannabis abuse, assigning a GAF of 50. Also in January 2013, the Veteran's psychiatrist stated in a medical note that she had treated the Veteran in individual psychotherapy since November 2011 and that he had been diagnosed with severe, combat related PTSD characterized by avoidance behaviors, emotional dysregulation, hypervigilance, and reexperiencing events. She further stated that: [i]n the time that I have treated [the Veteran] he has experienced exacerbations of symptoms, which have resulted in significant decompensation, when faced with increased stress. His symptoms have worsened within the past year and have been of a severity level that I believe would prevent him from obtaining or maintaining employment. Veteran has experienced the following symptoms within the past year: irritability, difficulty managing angry impulses, verbal confrontations with others, difficulty managing stress and changes in daily routine, significant anxiety with recurrent and severe panic attacks, social withdrawal, and problems dealing with the public. It is the opinion of this psychologist that the PTSD symptoms are of the severity level which would significantly impair occupational and interpersonal functioning. In March 2013, the Veteran was provided a second VA compensation and pension examination for PTSD. The examiner interviewed the Veteran, who reported experiencing traumatic combat events from his Vietnam service through dreams, flashbacks, and intrusive thoughts. The Veteran reported frequently avoiding activities he previously enjoyed, including church, social and sporting events, and public places. He stated he was triggered by various cues and experiences difficulty concentrating, increased hypervigilance, difficulty sleeping, exaggerated startle response, and outbursts of anger. The Veteran noted he had become more reclusive since his last evaluation, impacting his relationships and ability to accomplish tasks. He reported a decline in motivation, resulting in a declination in the condition of his home. The Veteran reported attempting to attend a job interview 8 months prior to the examination, but that he became so anxious, dizzy, and nauseated, that he was unable to attend. He additionally reported that due to anxiety, he was unable to stay for the funeral ceremony of three recently deceased friends. The Veteran stated that he has only one good friendship, but does not feel he can share his military experiences with this individual. He does not feel connected to any family members and receives little support from them. The examiner noted that the Veteran has experienced the following symptoms as a result of his PTSD for a duration of more than one month and that they cause clinically significant distress or impairment in social, occupational, or other important areas of functioning: efforts to avoid thoughts, feelings, or conversations associated with the trauma; efforts to avoid activities, places, or people that arouse recollection of the trauma; markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others; restricted range of affect (e.g., unable to have loving feelings); sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or normal life span); difficulty falling or staying asleep; irritability or outbursts of anger; difficulty concentrating; hypervigilance; and exaggerated startle response. The examiner additionally found that the Veteran's PTSD resulted in symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation, and intermittent inability to perform activities of daily living. The examiner opined that the Veteran is likely to be severely impaired in a work environment that requires the ability to sustain concentration and focus or that requires frequent interactions with customers, co-workers or supervisor as normally found in most jobs. The examiner further stated that the Veteran's symptoms such as hypervigilance and irritability increase the risk of interpersonal conflict in a workplace that requires frequent interactions. Finally, the examiner stated that the Veteran displayed occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner diagnosed the Veteran with PTSD and assigned a GAF score of 48. Also in March 2013, the Veteran participated in an individual psychotherapy session in which he reported difficulty adjusting to the VA examination and spending the preceding week in bed. He reported feeling dizzy, anxious, and depressed, though has felt improvement and been able to attend to daily living activities. He reported exercising to help with his anxiety. His judgment was observed to be good and his insight was moderate. The Veteran's mood was "a little anxious but okay," and he was appropriately dressed and groomed. He denied any suicidal or homicidal ideation. He was diagnosed with PTSD and panic disorder without agoraphobia, and assigned a GAF score of 55. In May 2013, the Veteran was afforded a VA examination to determine the effect, if any, of his service-connected malaria on his ability to obtain or maintain substantially gainful employment. The examiner reviewed the claims file and interviewed the Veteran. He noted that in the past 4 years, the Veteran has had 3 episodes of dizziness, high temperature, sweating, anxiety, and depression, lasting 1 to 3 weeks, which were attributable to his active malaria. The examiner noted that the Veteran's malaria impacts his ability to work in that "periods of fever and bedrest would make it even more impossible to work" on top of the Veteran's daily depression and anxiety, but that "it is not clear that these episodes are caused by malaria. Regarding employment and employability, these occasional episodes represent a temporary add on to the underlying daily difficulties described mainly as depression, anxiety [and t]he additional effect appears to be minor." He further stated that in the Veteran's specific case, "a case of unusually mild and very delayed malaria recrudescence was possible but not likely," and that he "would have to speculate on how veteran would act, for example duration and extent of withdrawal, if PTSD was not present." At an individual psychotherapy session in May 2013, the Veteran was observed to not be in imminent risk of suicide. He described having gone to the gym and getting in a fight with another person there. He was assessed with PTSD and panic disorder without agoraphobia, and assigned a GAF of 55. In June 2013, the Veteran received treatment at the VA, during which he was assessed as being a risk for suicide due to frequent suicidal thoughts. He reported that he had no plan or intent to commit suicide. The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that most nearly approximates that which warrants the assignment of a 70 percent disability rating throughout the appeal period, and the assignment of TDIU from May 3, 2011, though not earlier. See 38 C.F.R. § 4.7 (2013). In reaching its conclusion as to the underlying PTSD rating, the Board notes that the Veteran's symptoms at his February 2011 VA examination included depression most days of the week, irritability and difficulty managing anger including angry outbursts, marital conflict due in part to verbal and physical aggression and social avoidance, problematic concentration, panic attacks up to 4 times per week, depression most days out of the week resulting in difficulty making decisions and decreased interest in activities, anxiety, sleep impairment, limited close interpersonal relationships due in part to social withdrawal and emotional detachment, and hypervigilance that leads to avoidance of crowded situations. In addition, the Board finds the Veteran's statements made to his treating psychologist in May 2012 and to the undersigned Acting VLJ at the August 2012 travel Board hearing, regarding his experiences with suicidal thoughts for several years, including nearly driving off the road in an attempt to commit suicide, are credible. Thus, the Board finds that the symptoms observed by the February 2011 examiner, as well as those described by the Veteran in his lay statements, are on par with those contemplated by the higher 70 percent rating. As the evidence shows that these symptoms have persisted throughout the entire appeal period, the Board finds that the Veteran is entitled to an initial rating of 70 percent for his service-connected PTSD. Although the Board has found that the Veteran's symptomatology more nearly approximates the criteria for 70 percent evaluation than it does for the 50 percent evaluation for the entire appeal period, the Board also finds that the Veteran's symptomatology does not more nearly approximate the criteria for a 100 percent evaluation than it does the criteria for a 70 percent evaluation. As described in more detail below, the Veteran's PTSD precludes him from working. However, he has severe but not total social impairment, both of which are required for a 100 percent evaluation. Specifically, though the Veteran has significant social isolation in that he avoids crowds and does not have many friends or connection with family, the Veteran has regularly attended and participated in weekly VA support groups which he has described as giving him a sense of camaraderie, as well as maintained weekly phone contact with a close friend who lives out of state. Moreover, although the Veteran clearly has a serious disability, he exhibits few of the symptoms noted as applicable for a 100 percent rating. Throughout the appeal period he has not exhibited grossly inappropriate behavior, persistent danger of hurting self or others, persistent delusions or hallucinations, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. While the Veteran was found in the March 2013 VA examination to display intermittent inability to perform activities of daily living, his symptoms are more fully described within the examination as frequent panic attacks, depression, and anxiety which prevent him from attending social functions or being in crowds. The examination and treatment records also reflect that the Veteran has been able to maintain good hygiene, attend medical and support group appointments, and participate in exercise and yard work. As such, his symptoms appear to more closely approximate those for a 70 percent rating, (e.g., near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively), but without rising to the level require for a 100 percent rating (e.g., intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene). In addition, though the Veteran has stated that he has had near constant suicidal thoughts for several years, and that he has "a disdain and mistrust for authoritative people" which results in "a persistent danger of hurting others," it is important to note that there have been no suicide attempts, and that the Veteran has consistently reported that he is not actively suicidal or homicidal. The criteria clearly distinguish between ideation and persistent danger, and the Board finds, based on the Veteran's own reports, that his symptomatology is more consistent with ideation than persistent danger. Additionally, though the Veteran reported occasional physical confrontations with his wife, the evidence does not indicate that such confrontation was persistent, or that there have been any similar physical confrontations with others since the date of filing his claim. As noted above, the Board acknowledges that a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan, 16 Vet. App. at 442; however, as the Court held in Mauerhan, without the examples noted in the rating criteria, differentiating a 50 percent evaluation from a 70 percent evaluation would be extremely ambiguous. By extension to the present case, without the examples, differentiating the 70 and 100 percent ratings would be equally ambiguous. The Board is to consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. If the evidence demonstrates that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating should be assigned. Id. In this case, however, the Board concludes that the Veteran's PTSD symptoms do not cause total occupational and social impairment, as contemplated for a 100 percent rating. Extraschedular Consideration Also considered by the Board is whether referral is warranted for a rating outside of the rating schedule. 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) (2013). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 11 (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. Extraschedular consideration is not warranted in this case. The record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran describes are contemplated by the criteria found at 38 C.F.R. §4.130. Moreover, more severe manifestations are contemplated by the rating schedule - including persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name, none of which the Veteran has experienced. Those criteria allow for ratings for all of his symptoms and manifestations and for symptoms and manifestations significantly more severe. Therefore, the first prong of the Thun test is not satisfied, and referral for extraschedular consideration is not warranted. TDIU Consideration It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. §4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.16 (2013). Substantially gainful employment is that employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the claimant resides. Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. Id. In evaluating a veteran's employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. For a veteran to prevail on a claim for TDIU on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the claimant is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Veteran clearly meets the criteria for 38 C.F.R. § 4.16(a) consideration, given the Board's grant of an initial rating of 70 percent for PTSD. Regarding whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, the opinion evidence shows that this criterion is met. The claims file includes a September 2011 letter from the Veteran stating that he cannot work due PTSD symptoms including anxiety, depression, scrambled thoughts, bad memory, anger, and lack of sleep. In October 2011, the Veteran stated that he was additionally laid off from a different employer in 2009 due to "lack of work" and "moving too slow," while an October 2011 statement from the Veteran's former employer states that he was "laid off" in August 2008. In October 2012, the Veteran stated he has been unable to work since 2009, and at his August 2012 Travel Board hearing, he shared that the end of his employment in 2009 was a result of "basically lack of work and I just wasn't feeling too good at the time," as well as his inability to fit in. He additionally stated that he had looked for a new job since that time but found motivation difficult due to dizziness and not feeling well. The Veteran later asserts in a May 2012 statement that he has not had steady employment since beginning work as a drywall hanger in 1971, and that he was continuously laid off from construction jobs 3 to 6 times each year. He asserted that though the employer asserted reasons for being laid off as due to "lack of work," he believes the true reason was due to his PTSD symptoms and that the employers were not making truthful statements so as to avoid lawsuits. Though the Veteran has asserted that his PTSD symptoms rendered him unemployable beginning in 2009, the Board notes that the competent evidence, including the Veteran's own statements to the February 2011 VA examiner and at the August 2012 travel Board hearing, do not support his assertions that his service-connected PTSD rendered resulted in his total occupational impairment at that time. Specifically, as noted above, the February 2011 VA examination report diagnosed the Veteran with PTSD and further opined that though he has frequent verbal altercations with co-workers and supervisors, he has not experienced absence or loss of employment related to mental health symptoms over the past twelve months. The Veteran additionally reported to the examiner that he had a carpentry job in Las Vegas for about seven months in 2009. As noted above, the Veteran also represented at the August 2012 Travel Board hearing that his termination from employment in 2009 was at least in part due to "lack of work." The Board finds that this evidence tends to show that the Veteran was not unemployable due to his service-connected disabilities in 2009. The Veteran's psychiatrist provided a medical opinion in May 2012 in which she stated that she had treated the Veteran since November 2011 and that in the past year, she noticed a worsening of his PTSD symptoms such that he is prevented from obtaining or maintaining employment. She made a similar notation in the Veteran's medical records in January 2013, specifically stating that his PTSD symptoms worsened over the past year, are of the severity that would significantly impair occupational and interpersonal functioning, and would accordingly prevent him from obtaining or maintaining employment. It is clear from the May 2012 medical opinion that the Veteran's PTSD symptoms rendered him unable to follow substantially gainful employment not on the exact date of her notation, but rather, sometime in the year prior to that date. Similarly, as the Veteran filed his claim for TDIU in August 2011, it is likely that it was sometime prior to that date that his symptoms worsened to the point that he was unable to secure or follow employment due to his PTSD. This, taken in concert with the February 2011 VA medical opinion that over the previous 12 months the Veteran had not experienced absence or loss of employment related to his mental health symptoms, demonstrates that the criteria for TDIU were most likely met approximately one year prior to the May 2012 opinion. Thus, reading the competent and objective medical and lay evidence of record sympathetically towards the Veteran as it must, the Board resolves all doubt in his favor and accordingly finds that his unemployability is attributable to his PTSD and the worsening of his condition as of May 3, 2011. That said, the Board does not find sufficient evidence to establish entitlement to TDIU prior to that date. Finally, the Veteran asserts that his service-connected PTSD rendered him unemployable for a two week period in July and August 2006. The evidence of record includes a private treatment record confirming that the Veteran sought treatment for dizziness. The treating physician diagnosed the Veteran with labyrinthitis and dizziness. A January 2013 employer's statement confirms that the Veteran was unable to work due to illness at that time. Although the Board finds the Veteran's description of his symptoms credible, the competent medical evidence of record does not relate such symptoms to a diagnosis of PTSD or other psychiatric condition. Moreover, as the Veteran's alleged inability to work during this time occurred prior to his grant of service connection for PTSD and was limited to only two weeks, at which time he then returned to substantially gainful employment for another two years, he does not meet the regulatory requirements for TDIU for that time. See 38 C.F.R. § 4.16. ORDER A 70 percent initial evaluation is granted for PTSD for the period from January 8, 2009 until March 15, 2013, subject to the laws and regulations governing the payment of monetary benefits. An evaluation in excess of 70 percent for PTSD is denied for the period beginning on March 15, 2013. Entitlement to TDIU is denied for the period prior to May 3, 2011. Entitlement to TDIU is granted for the period beginning on May 3, 2011, subject to the laws and regulations governing the payment of monetary benefits. ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs