Citation Nr: 1334506 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-24 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for service connected posttraumatic stress disorder (PTSD) prior to August 27, 2009. 2. Entitlement to a rating in excess of 70 percent for service connected PTSD from beyond August 27, 2009. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from August 1977 to May 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for PTSD initially rated at 50 percent. During the pendency of the appeal, the Detroit, Michigan, RO issued a September 2009 decision that which increased the Veteran's PTSD rating from 50 to 70 percent effective August 27, 2009. As this action does not represent a total grant of benefits sought on appeal, the claim for a higher evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure complete review of the evidence of record. FINDINGS OF FACT 1. Prior to August 27, 2009, the Veteran's PTSD was manifested by symptoms consistent with occupational and social impairment with reduced reliability and productivity; neither occupational and social impairment with deficiencies in most areas nor total occupational and social impairment is shown during this period. 2. From August 27, 2009, the Veteran's PTSD has not been manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The Veteran has not met the criteria for an initial rating in excess of 50 percent for PTSD prior to August 27, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2013). 2. The Veteran has not met the criteria for a rating in excess of 70 percent for PTSD beyond August 27, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Assist and Notify VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). An October 2007 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Finally, the Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in the September 2009 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA has met its duty to assist the Veteran in the development of the claim. The Veteran's VA treatment records and examinations have been obtained in the development of the claim. The Veteran has not indicated private treatment for her problems. 38 U.S.C.A § 5103A, 38 C.F.R. § 3.159 (2013). The Veteran has not indicated nor does the record show the Veteran is in receipt of Social Security Administration (SSA) benefits. The Veteran has been afforded several VA examinations conducted in March 2008 and August 2009. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A medical examination is adequate "where it is based upon consideration of the Veteran's prior medical history and examination and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet App. 120, 123 (2007). The VA examiners considered Veteran's description and history of his symptoms, conducted a thorough examination and provided a detailed report of the Veteran's condition. The Veteran has submitted supplemental statements indicating she regretted not telling her March 2008 VA examiner aspects of her day to day life. However, the Board finds that the examination report contains sufficient bases and findings for the Board to render a decision in this appeal. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Applicable Laws Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2013); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2013); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2013); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2013). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's psychiatric disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). PTSD is to be rated under the general rating formula for mental disorders under 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. Notably, the term "such as" in 38 C.F.R. § 4.130 precedes lists of symptoms that are not exhaustive, but rather serve as examples of the type and degree of symptoms and their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F. R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The pertinent provisions of 38 C.F.R. § 4.130 concerning the rating of psychiatric disabilities read in pertinent part as follows: 30 percent: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 50 percent: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty establishing effective work and social relationships. 70 percent: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. 100 Percent: 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate 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). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 (2012) [incorporating by reference the VA's adoption of the DSM-IV for rating purposes]. The Board notes that an examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. Factual Background The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The record reflects that the Veteran was the victim of a rape during her active military service. She provided a detailed account of the rape and subsequent medical and mental health history during her initial March 2008 VA PTSD examination. At that time, she reported working as a full time baker for the past 10 to 20 years. She had divorced her first husband, but had remarried. Her husband was supportive of her and involved. She also had stepchildren and one biological son. The Veteran attended individual therapy, which she found helpful, and took anti-depressant and anxiety medications. Her reported symptoms included depression, panic attacks, sleep disturbances, obsessive and ritualistic behavior described as security consciousness, irritability or outbursts of anger, difficulty concentrating, exaggerated startle response, hypervigilance, flashbacks, self consciousness, social dysfunction and concentration problems. The VA examiner noted the Veteran had chronic symptoms with a moderate amount of PTSD symptoms over the years which required treatment on a regular basis. The 2008 VA examiner reported objective findings including a short attention span, good impulse control, normal memory and unremarkable psychomotor activity. The Veteran was clean, neatly groomed, appropriately and casually dressed with no problems maintaining personal hygiene. Her speech was soft or whispered and her affect was appropriate. Her mood towards the examiner was cooperative, friendly, relaxed and attentive but her overall mood was anxious. Attention and orientation to person, time and place were intact. The examiner described her thought process and content as unremarkable with no delusions. Further, the Veteran had no history of homicidal or suicidal thoughts. The VA examiner indicated the Veteran has some limitations in her activities of daily living and noted the Veteran stated she was not as outgoing and more self-conscious since the rape. The Veteran had persistent re-experiencing of the traumatic event through recurrent and intrusive distressing recollections and dreams (nightmares), avoidance of thoughts, feelings, conversations, activities and/or place/people that arouse recollections of the trauma. She had markedly diminished participation or interest in significant activities, endorsed feelings of detachment or estrangement from others and a restricted range of affect. No inappropriate behavior was observed. A GAF score of 55 was assigned by the examiner. The 2008 VA examiner specifically noted there was no total occupational and social impairment. While social and occupational deficiencies in work and mood were indicated, the Veteran had no deficiencies in thinking, judgment or family relations. The social and occupational impact was described as concentration difficulties at work and mood problems through depression and anxiety. The VA examiner noted the Veteran's quality of life was affected by having psychiatric therapy for years, being divorced once and having constant PTSD symptoms. The Veteran's capacity for improvement was helped by the Veteran taking her medications, employment, no substance abuse, therapy and marriage to a supportive husband. The Veteran submitted a statement of symptoms in July 2009 she felt unable to communicate to the March 2008 VA examiner. She described three episodes of behavior she felt was alarming from 2002 which included growling at a man, hissing at a customer and lecturing loudly and angrily at church when lust came up and later crying at home. She also had recurring violent dreams and was angry "all of the time." She reported being more aware of her behavior with therapy and medication. She described difficulty at work because of feeling confused, anxious and rattled. The Veteran took medication prior to work to avoid getting immediately "worked up." The Veteran explained anxiousness caused her to make mistakes which have resulted in injuries including burns, a concussion and stitches. When pressure became too much at work she removed herself to a non-customer area and yelled as loud as she could. Her employer advised her to seek medicine for anxiety. She began taking medicine for anxiety and depression in 2002 and has had negative symptoms on some medications such as crying and feeling internal rage. The Veteran was nervous around all men and reported living alone and being isolated before she married her current husband in 2007. She described her husband as a kind and caring man. She struggled with a sexual relationship. She had difficulty living with a family and was argumentative and easily defensive but explained her family was supportive and tolerant. The Veteran was deeply fearful of someone yelling at her and explained the man who raped her screamed, raged and cursed at her during the physical act. She worried about employment long term because her employers spoke to her about becoming a seasonal employee. The August 2009 VA examination report describes the Veteran's mood as hopeless, depressed and dysphoric in addition to anxious during the examination. The Veteran's remote and recent memory were normal with recent memory mildly impaired. The examination noted symptoms including nightmares, night sweats, fearfulness, concentration problems, memory problems, impulsivity, relationship problems, trust issues and emotional numbing which was indicated to have impaired the Veteran's functional status and quality of life. The Veteran again reported attending individual therapy on a regular basis and taking medicine as prescribed. The Veteran reported constant pain from Chronic Multiple Sclerosis (MS) since 2002. She enjoyed gardening, reading, spending quiet time by herself and associating with her family. Relationships with acquaintances, while not deep, were noted to be fine. She detailed not liking to reveal a lot about herself and did not attend social gatherings outside of her immediate family. The VA examiner provided a summary statement of current psychological functional status noting it appeared the Veteran's functional status was fair to average based on the post military psychological review as the Veteran stated her relationship with family members was supportive but relationships with acquaintances were superficial. The VA examiner provided a fair to poor prognosis for improvement of the Veteran's psychiatric condition or functional status as it appeared her emotional trauma from service was ingrained in her psyche. The Veteran reported her PTSD symptoms have gradually increased in severity. The examiner assigned a GAF score of 52 and explained there was a worsening in PTSD symptoms since the last March 2008 examination. Changes in functional status and quality of life were in employment performance and her social/interpersonal relationships. This was evidenced by the Veteran's decreased responsibilities at work due to anxiety levels and inability to focus which led to uncompleted tasks. Social/interpersonal relationships were impacted by the Veteran feeling uncomfortable in a group and not relating to people very well because she felt like she did not have anything to offer. The 2009 VA examiner noted there was no total occupational and social impairment. Deficiencies were noted in the Veteran's thinking because of concentration and memory problems, at work because the Veteran became confused and mood because of depression, anxiety and mood swings. The Veteran did not have deficiencies in family or judgment. The VA examiner summarized the Veteran had reduced reliability and productivity due to PTSD because of confusion at work and forgetting to do tasks and a diminished capacity to perform certain job responsibilities. VA treatment records contain sessions with VA clinical social workers and psychiatrists from January 2007 to September 2009. The Veteran spoke of issues also discussed during VA examinations including anger problems through yelling at coworkers, low self-esteem, suspiciousness towards others, her sexual assault in service and intimacy issues. GAF scores were assigned by social workers in 2008 and 2009 of 52 and 50. The Veteran's full time employer submitted a statement explaining the Veteran's difficulties at work which are essentially based on anxiety, startle response and distractibility. The Veteran can be startled easily which has resulted in hurting herself through falls or burns from the oven or hot desserts. Several falls caused the Veteran to be seriously hurt. The Veteran has trouble in crowded situations and will become careless and drop things or try to do things too fast which will increase her anxiety. She becomes distracted easily and struggles to focus on tasks which have resulted in her forgetting to complete tasks. The job is also hard for the Veteran even when not terribly busy. The employer described the Veteran as loyal, dependable and honest. Rating Prior to August 27, 2009 The Veteran contends her PTSD warrants an initial rating in excess of 50 percent and a rating in excess of 70 percent beyond August 27, 2009. After a review of the evidence, the Board finds the Veteran is not entitled to an initial rating in excess of 50 percent for her service connected PTSD prior to August 27, 2009. During this period, the evidence shows symptoms most consistent with occupational and social impairment with reduced reliability and productivity due to such symptoms as disturbances in motivation and mood and difficulty in establishing and maintaining effective work and social relationships as contemplated by a 50 percent rating. In this regard, the Veteran's manifestations of PTSD during the March 2008 VA examination included depression, anxiety, panic attacks, sleep disturbances, obsessive and ritualistic behavior through security consciousness, irritability or outbursts of anger, difficulty concentrating, exaggerated startle response, hypervigilance, flashbacks, self-consciousness and social dysfunction. However, the evidence does not show: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; or an inability to establish and maintain effective relationships as contemplated by higher (70 percent) rating. Rather than having illogical, obscure, or irrelevant speech, her speech was described as soft or whispered with an appropriate affect. There is nothing to suggest that she had near continuous panic or depression affecting the ability to function independently. On the contrary, despite occasional difficulties with anxiety and dealing with others, she was able to maintain long time gainful employment. While describing prior anger outbursts in 2002 including growling at a customer and getting angry during a Bible study, the evidence does not show a more recent episodes of impulse control. On the contrary, during the 2008 examination, she had no episodes of homicidal or suicidal thoughts. Rather than display spatial orientation, she was described as oriented with unremarkable thought process and no delusions during this period. Furthermore, the 2008 examination report notes that she was appropriately and neatly groomed with no problems maintaining hygiene. While she had markedly diminished participation or interested in activities and endorsed feelings of detachment or estrangement from others, the Veteran maintained a good relationship with her husband and remained employed at the same job for many years. Accordingly, the Board concludes that the criteria for a rating in excess of 70 percent are not met prior to August 27, 2009. In reaching this conclusion, the Board observes that the GAF score of 55 suggests a moderate impairment of functioning. This score is consistent with the Veteran's assigned rating of 50 percent prior to August 27, 2009. In reaching this conclusion, the Board notes that the Veteran has exhibited good relationships with her husband and family, has established a solid relationship with her employer and is able to perform most activities of daily living. Although the evidence shows the Veteran has problems with her social function, there is no inability to establish effective social relationships prior to August 27, 2009, as contemplated by a 70 percent rating. The Board has considered lay statements from the Veteran and her employer describing occupational impairments, as discussed above. The Board finds the Veteran's statements of symptoms and the employer's statements of observed behavior of difficulties at work are competent and have no reason to doubt their credibility. The Veteran has been employed full time by the same employer during the past 10 to 20 years. The Veteran's employer reported the Veteran's difficulties at work are offset by her loyalty, dependability and honesty. The Board finds even with some degree of occupational impairment, the record clearly demonstrates the Veteran performs at least at the minimally acceptable standard for retaining employment. Although difficulty adapting to stressful situations including work life is contemplated by a 70 percent rating, see Mauerhan, 16 Vet. App. at 442, the Board concludes her overall level of disability did not exceed a 50 percent rating prior to August 27, 2009. Rating From August 27, 2009 The Board finds that the preponderance of the evidence is against the assignment of a 100 percent rating at any time during the course of the appeal. There has been no evidence that the Veteran demonstrated total occupational and social impairment as a result of his PTSD as indicated by both VA examiners in 2008 and 2009. While the Veteran had difficulties in a social setting, she has remained married since 2007. Despite occasional difficulties at work, she has remained gainfully employed throughout the course of the appeal. Moreover, the record does not contain evidence of gross impairment in thought processes or communication. Her thought processes have been described as unremarkable during both the 2008 and 2009 examinations. She has not had persistent delusions or hallucinations. There is no evidence of grossly inappropriate behavior, persistent danger of hurting self or others, or intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). Likewise, despite some mild recent memory, the Veteran has not been disorientation to time or place or displayed memory loss for names of close relatives, own occupation, or own name. Based on the foregoing, the Board concludes that the preponderance of the evidence is against findings of total occupation and social impairment as contemplated by a 100 percent rating at any time during the course of the appeal. Accordingly, the criteria for a rating in excess of 70 percent from August 27, 2009 are not met. While the Veteran's PTSD is indicative of serious symptomatolgy, those symptoms are contemplated by her initial rating of 50 percent and her 70 percent rating as of August 27, 2009. Extraschedular Consideration According to VA regulations, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected PTSD are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, to her level of social and occupation impairment. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Specifically, the Veteran primarily reports depression, anxiety, sleep impairment, anger outbursts, intrusive memories, concentration, fearfulness, memory problems, hypervigilance, startle response, nightmares, mood swings, impulsivity, all resulting in occupational and social impairment, though not total impairment. As discussed above, the current 50 percent and 70 percent rating are adequate to fully compensate for these symptoms and are contemplated by the rating criteria. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. The Board therefore has determined that referral of these disabilities for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Rice considerations In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Significantly, the record does not reflect that the Veteran's PTSD prevents her ability to work, and the Veteran has not alleged as much. Indeed, the evidence demonstrates that the Veteran is currently employed and has been throughout the appeal period. Accordingly, the Board concludes that a claim for total disability based on unemployability has not been raised by either the Veteran or the record. ORDER Entitlement to a rating in excess of 50 percent prior to August 27, 2009, is denied. Entitlement to a rating in excess of 70 percent from August 27, 2009 is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs