Citation Nr: 1334610 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 13-03 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent and in excess of 70 percent from May 15, 2013, for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to May 15, 2013. ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from December 1948 to November 1951. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In the August 2011 rating decision, service connection for PTSD was awarded and the Veteran was assigned a 50 percent rating, effective July 6, 2010. Upon appeal in an August 2013, this rating was increased to 70 percent, effective May 15, 2013. In August 2013, the RO also granted a TDIU, effective May 15, 2013. Although this was a partial grant of the benefit sought, the Board notes that the Veteran has indicated continued disagreement with the rating assigned for his PTSD and the Veteran has not been granted the maximum benefit allowed; thus, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Regarding the TDIU claim, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (the Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. Here, the issue of entitlement to a TDIU has been specifically raised by the Veteran, and as discussed below, he is entitled to a TDIU for the entire timeframe on appeal. In light of the holding in Rice, the Board had added the additional issue of entitlement to a TDIU prior to May 15, 2013, as an issue on appeal. In an August 2013 statement, the Veteran argued that his PTSD has been present since 1952. It appears that he is attempting to raise a claim for an earlier effective date for the award of service connection for PTSD. As this matter has not been considered by the RO, it is referred for appropriate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Throughout the entire timeframe on appeal, the Veteran's PTSD is manifested by symptoms such as nightmares, difficulty sleeping, intrusive thoughts, constricted affect, feelings of anger, exaggerated startle response, depression, irritability, concentration and memory problems, and some impairment of relationships with others, all resulting in deficiencies in most areas, but less than total social and occupational impairment. 2. With full consideration of the Veteran's educational and occupational background, the evidence of record supports a finding that his service-connected disabilities combine to render him unable to secure and follow substantially gainful employment for the entire timeframe on appeal. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for PTSD have been met for the entire appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2013). 2. Throughout the entire appeal period, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities are met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in December 2010, April 2011, May 2011, and April 2013 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board recognizes that the Veteran was not provided notice of how disability ratings and effective dates are determined until after the initial adjudication of these claims. The Board finds, however, that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has submitted argument in support of his claims. These arguments have included his detailed reasons for believing an increased rating is warranted, including the specific disability rating percentage he feels is applicable. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. The Veteran has not indicated private treatment for his PTSD. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. 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 RO provided the Veteran appropriate VA examination most recently in August 2013. The VA examination report is thorough and supported by the other treatment evidence of record. The examination report discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination report also discussed the impact of the disability on the Veteran's daily living. Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the August 2013 examination report in this case is 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 there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1 . The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). When evaluating a mental disorder, the rating agency shall consider the frequency, severity and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. The rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The Veteran's PTSD (Diagnostic Code 9411) is rated under the schedule of ratings for mental disorders, 38 C.F.R. § 4.130. In relevant part, the rating criteria are as follows. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. A 70 percent rating is warranted for 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 that 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent 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. According to the DSM-IV, a GAF score between 41 and 50 is indicative of 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); a GAF score between 51 and 60 is indicative of 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 coworkers); a GAF between 61 and 70 is indicative of mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships; a GAF between 71 to 80 is indicative that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in school work). TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2013). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2013). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). Factual Background The Veteran seeks an initial disability rating in excess of 50 percent and in excess of 70 percent beginning May 15, 2013, for his service-connected PTSD. By way of background, the Veteran filed for service connection for PTSD in July 2010. He was awarded service connection for PTSD in an August 2011 rating decision and was assigned a 50 percent rating, effective July 6, 2010 (date of his claim). Following his appeal, the RO issued an August 2013 rating decision that increased his PTSD to 70 percent disabling, effective May 15, 2013. A TDIU was also granted, effective May 15, 2013. At the time entitlement to service connection arose, the Veteran was being treated at the VA Medical Center for PTSD symptoms. He initially reported sleeping and concentration problems, and increasing thoughts of his combat experiences. In April 2010, the Veteran sought treatment for a history of nightmares, flashbacks, and other intrusive thoughts. He reported that he is "very disturbed," and becomes tearful when discussing his time in Korea. He endorsed confusion, anhedonia, increased appetite, lack of motivation, and frequently is irritable. He also reported frequent arguments with his spouse. Mental status examination showed normal behavior, speech, and appearance. His mood was "ok" and his affect was flat. Thought processes were goal directed and without circumstantiality, tangentiality, or flight of ideas. The Veteran had no suicidal or homicidal ideations. He denied any audio or visual hallucinations or delusions. He was oriented in all spheres and had good insight and judgment. The assessment was PTSD, by history, and adjustment disorder with depressed mood. In a June 2010 VA outpatient treatment note, the Veteran had reported increasing PTSD symptoms, including irritability, social isolation, emotional numbing, hypervigilance, increased startle response, difficulty concentration, and increasing tearfulness. At that time, his mood was described as depressed and his affect was guarded. The treating professional noted that the Veteran has likely been suffering with symptoms of PTSD for many years with a variance of severity throughout. The psychologist noted that his strength and protective factors are family related as he has support from his wife, children, and grandchildren. She diagnosed the Veteran as having PTSD and major depressive disorder, and assigned a GAF of 60. The Veteran continued to undergo VA mental health treatment and his GAF varied from 52 to 60 during the appeal period. The types of symptoms were consistent, but they varied slightly in terms of severity. He generally experienced anger, hypervigilance, increased startle response, avoidance, intrusive thoughts, diminished mood and affect, but without hallucinations, delusions, disorientation, or symptoms of psychosis. In June 2011, the Veteran was afforded a VA PTSD examination, during which the Veteran reported symptoms such as reexperiencing the trauma, avoidance, emotional numbing, and increased arousal. He experiences intrusive thoughts, images, and perceptions; distressing nightmares; and intense psychological distress to triggers. He avoids thoughts, feelings, or conversations associated with the trauma; avoids activities and places that arouse memories of the trauma; has difficulty remembering important aspects of the trauma; has markedly diminished interest or participation in significant activities; feels detached from others; has a restricted range of affect; and has a sense of a foreshortened future. He also endorsed increased arousal due to sleep disturbances, irritability, difficulty concentrating, hypervigilance, and exaggerated startle response. Additionally, the examiner noted that his symptoms associated with depressive disorder include depressed mood, decreased interest, weight loss, decreased appetite, fatigue, and decreased concentration. The examiner opined that the Veteran's psychiatric symptoms have resulted in mild to moderate impairment of daily functioning. He noted that the Veteran has very few friends, and despite being married for 57 years, he argues daily with his spouse. The examiner opined that the Veteran's PTSD symptoms have resulted in mild impairment in his occupational functioning as he was working up until his retirement. The examiner noted, however, that when he became a boss, his employees were often scared or intimidated by him. The examiner noted some specific illustrations of his symptoms including intrusive thoughts on a daily basis, tearfulness, nightmares every night, intense psychological distress, lack of interest in anything, not being fully expressive to his true feelings towards his family, and was irritable and short tempered. The examiner went on to note that the Veteran was currently retired, but he did not have any indication that his employment functioning prior to retirement had been affected by symptoms of PTSD other than the fear he instilled in his employees when he became a boss. Mental status examination revealed normal appearance and appropriate behavior, eye contact, and attitude. His mood was slightly depressed, but he struggles to not lose his temper. He stated that his mental health treatment has helped him in the past year. His thought processes were logical and goal-directed. He denied any visual or auditory hallucinations or delusions. Speech was normal, but the Veteran endorsed difficulty with memory. His judgment was intact, and he denied any suicidal or homicidal ideation. The examiner opined that there was no clinically significant impairment of thought processes or communication. The Veteran was ultimately diagnosed as having PTSD and depressive disorder, not otherwise specified. He was assigned a GAF of 55. In statements submitted by the Veteran, he asserted that he was unemployable due to his PTSD symptoms. He reported that when he owned his own business, all of his coworkers voted him out because nobody could put up with him any longer. The Veteran was afforded another VA examination in August 2013, during which he reported similar symptoms as in the 2011 VA examination. The examiner diagnosed PTSD and opined that his symptoms were consistent with occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. The Veteran indicated that he was still married, but his marriage has been significantly affected by his symptoms of irritability and reexperiencing. He does not, however, feel that his PTSD symptoms have impacted his relationship with his children and grandchildren. He advised that he has very few friends and no regular contact with them. He attends scheduled activities if he is expected to go, but he does not enjoy them and prefers to be alone. He denied any hobbies or activities and only watches the news. The Veteran is able to perform activities of daily living and functioning. Regarding his work history, the Veteran reported that he lost his most recent job because of his irritability and because of his combativeness with his co-workers who were also his friends and colleagues. He recalled actually participating in a physical altercation with his colleagues that included shoving them. The examiner specifically noted that the Veteran has a history of conflict in the workplace, and has a history of getting fired due to his irritability, quick temper, and combativeness. The Veteran engaged in significant alcohol use following his completion of military service in 1951, and he reports that he would drink beer and wine daily beginning in the military and extending for approximately 30 years thereafter. He continues with alcohol use to this day and believes he uses it to minimize his PTSD symptoms. The Veteran endorsed symptoms of depressed mood; suspiciousness; near-continuous panic or depression affecting his ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; memory loss for names of close relatives, own occupation, or own name; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Mental status examination was as follows: The [Veteran] is a well-groomed 81-year-old male appearing stated age with good eye contact, no psychomotor agitation or retardation. Speech is normal volume and rate. Mood is depressed. Affect is congruent. Thought process is goal-oriented. No circumstantiality, no tangentiality, no flight of ideas. Thought content, no suicidal ideation. The [Veteran] is experiencing continued symptoms of PTSD related to his military service in Korea in 1950 and 1951. He was exposed to numerous traumatic events in Korea as described in previous evaluations. His current distressing recollections of the events, he has recurrent dreams of the event. The [Veteran] reports that he used to remember the content of these dreams; however, while he has a nightmare and is awakened from a nightmare now, he does not remember the content, which he finds really distressing. He knows he has had one because he wakes feeling anxious, upset, [and] depressed. His wife tells him that he calls out in his sleep. His wife reports that he keeps her awake. The [Veteran] is frustrated that he cannot remember the content of his nightmares, particularly since he knows he has them, and they significantly disrupt his sleep. The [Veteran] reports intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of a traumatic event. He describes and instance when he burst out crying at a party when someone asked a question about Korea. He experiences physiological reactivity to cues that remind him of Korea. He experiences a lump in his throat, overall heightened anxiety. The [Veteran] makes considerable effort to avoid thoughts, feelings, or conversations about Korea. He says he forced himself not to think about it. The [Veteran] avoids activities, places, or people that arouse recollections of the trauma. This includes movies, books, [and] television programs. In fact, the [Veteran] associates cold weather with his experience in Korea because it was so cold where he was stationed and primarily for that reason, the [Veteran] and his wife relocate[d] and go to Florida for the winter months to avoid the cold weather, particularly since it reminds him of his service in Korea. The [Veteran] experiences inability to recall an important aspect of the trauma. He cannot remember a bit battle that he knows he should remember and that he was there for and fought in. Markedly diminished activities and participation in pleasurable activities. He has no hobbies and no activities. He feels detached and estranged from others. Restricted range of affect. The [Veteran] reports that "I don't feel anything." Sense of foreshortened future. The [Veteran] says that, "I always thought I wouldn't live to be 40." In terms of criterion D, the [Veteran] has significant difficulty falling and staying asleep. He reports that his sleep pattern varies. Sometimes it is hard to get to sleep. Sometimes it is hard to stay asleep. Some nights are worse than others. He says he wakes up feeling like he did not sleep at all and wakes up more tired than before he went to sleep. He reports significant temper, irritability, outbursts of anger. For example, driving to the appointment for today's evaluation, he became very angry about traffic, he believes over and above the response that most people would have to traffic. He reports a history of altercations related to driving. He reports that he in the past has, if he has been cut off by another driver, he will essentially force the other driver to pull over. He has gotten into physical fights about disagreements about driving with strangers. He feels that he is more irritable in situations such as going out to lunch. For example, very recently the [Veteran] and his wife were at lunch. The waitress did not hear his order, and he got angry. His wife told him that he had rudely asked the waitress, "Can't you hear me?" The [Veteran] reports significant difficulty concentrating. He reports that he has not read a book in 50 years. He has no concentration. The [Veteran] is significantly hypervigilant. He checks the locks on the doors. He does not like being in crowds. He is focused on safety, and this habit has become normal for him over the years. The [Veteran] reports exaggerated startle response. He has never been able to attend a 4th of July celebration, even when his children were young. He still cannot go even though he has grandchildren. If he hears a car backfiring, he jumps significantly. In terms of the [Veteran's] memory, he has significant problems with directions. For example, he got lost going around the block. His wife has to drive him everywhere. The [Veteran] feels his depression is getting worse. [He] also forgets names of people. For example, friends that he has known for 10 years who he spent significant time with, he does not know their names, and this has been true for him since Korea. In short, the [Veteran] is continuing to experience significant symptoms of PTSD related to his military service in Korea in 1950 and 1951. Analysis Increased Rating Upon careful review of the evidence of record, the Board finds that the objective medical evidence, and the Veteran's statements regarding his symptomatology for the entire timeframe on appeal, more nearly approximates symptoms associated with a 70 percent disability rating. In other words, resolving all doubt in favor of the Veteran, the Board finds that the evidence supports a 70 percent rating for the entire appeal period, that is, the period of time both prior to and from May 15, 2013. 38 U.S.C.A. § 5107; Gilbert, supra; Mauerhan, supra. However, the Board finds that the preponderance of the evidence is against an evaluation in excess of 70 percent. Neither the lay nor the medical evidence of record more nearly approximates the frequency, severity or duration of psychiatric symptoms required for a 100 percent disability evaluation based on total occupational and social impairment. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. Total social impairment is not demonstrated at any time during the appeal period. The Board has considered the VA treatment records, including both VA examination reports, as well as the Veteran's competent statements regarding the impact of his PTSD on his occupational and social impairment. The Veteran has competently and consistently reported significant symptoms related to his PTSD. Although the evidence shows that there have been some instances during the rating period when the Veteran's PTSD was not quite as severe as noted in the May 2013 VA examination, there has been consistent treatment for his symptoms with little or no improvement. The Board notes at this juncture that VA will handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. See 38 C.F.R. § 3.344(a). As such, the Board finds that the 70 percent rating for PTSD pursuant to Diagnostic Code 9411 is warranted for the entire timeframe on appeal. The Board finds, however, that a disability rating greater than 70 percent is not appropriate for any period of time on appeal because the Veteran does not have total social and occupational impairment. Although the Veteran clearly has a serious disability, he exhibits few of the symptoms noted as applicable for a 100 percent rating. He does not have gross impairment of 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, or disorientation to time or place. There are no symptoms of suicidal or homicidal ideation. Although he has frequent arguments with his spouse, he has expressed a positive family influence in his life from his wife, children, and grandchildren. As such, his symptoms appear to more closely approximate those for a 70 percent rating, specifically suicidal or homicidal ideation, but without rising to the level required for a 100 percent rating, specifically a persistent danger of hurting self or others. Thus, the Veteran does not have total social and occupational impairment. He does have some deficiencies in several areas, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 70 percent rating assigned herein. Furthermore, even resolving any reasonable doubt in the Veteran's favor, the Board finds that he does not meet the requirements for an evaluation greater than the assigned 70 percent schedular rating. To the extent that the Veteran has any of the criteria for a 100 percent rating, see Mauerhan, 16 Vet. App. at 442, the Board concludes his overall level of disability does not exceed the criteria for a 70 percent rating. For example, the Board acknowledges that the Veteran has some symptoms associated with a 100 percent rating for PTSD, namely some memory loss, but his disability picture is more in line with the symptoms associated with a 70 percent rating. In addition, the GAF scores ranging from 52-60 are consistent with "moderate" to "serious" impairment and not total impairment due to his PTSD symptoms. In summary, the Board believes that the now assigned 70 percent disability rating for the entire appeal period contemplates the frequency, severity, and duration of his symptoms resolving all doubt in favor of the Veteran. The rating now assigned is based on all the evidence of record rather than any isolated medical finding or assessment of level of disability. 38 C.F.R. § 4.126(a). Again, the evidence does not show total social impairment as required for a 100 percent disability rating. The Board acknowledges that report of VA examination dated in May 2013 shows worsening symptoms to include memory impairment. However, the Veteran was able to sustain meaningful relationships with family and friends; therefore, total social impairment is not shown. Accordingly, his myriad of symptoms do not more nearly reflect the frequency, severity, and duration of symptoms ratable at the 100 percent disability level as discussed above. Additional Considerations Consideration has been given to assigning a staged rating, however, at no time during the period in question have the disabilities warranted more than the ratings assigned above. See Fenderson. The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based 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). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 evaluation for the service-connected PTSD is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran primarily reports anger, irritability, flashbacks, nightmares, and avoidance. As discussed above, the current 70percent rating is adequate to fully compensate the Veteran for his psychiatric symptoms. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. TDIU As noted in the introduction section above, the Veteran has essentially contended that his PTSD symptoms render him unemployable. He was originally awarded a TDIU, effective May 15, 2013, based upon his increased PTSD rating effective that same date. As shown above, the Board has increased the Veteran's PTSD rating to 70 percent for the entire appeal period. For the reasons discussed below, the Board finds that the Veteran is entitled to a TDIU during the entire appeal period. Beginning July 6, 2010, the Veteran's service-connected disabilities included: PTSD, 70 percent; cold injury residuals of the left foot, 10 percent; and cold injury residuals of the right foot, 10 percent. His combined disability rating is 80 percent. As such, he met the schedular rating threshold for the grant of a TDIU, beginning July 6, 2010. Thus, the main question before the Board is whether the Veteran's service-connected disabilities alone rendered him unable to obtain substantially gainful employment. Based on the most recent VA examination, in May 2013, the record essentially shows that the Veteran cannot obtain and maintain employment due to his PTSD symptoms. As noted in the section above, the Veteran's PTSD symptoms throughout the appeal period were generally stable and the Board found that his symptoms warranted a 70 percent rating for the entire appeal period. The Board notes that the Veteran has competently and credibly reported the impact his PTSD symptoms had on his work relationships in the past. He was even forced out of his own business because others could not deal with him. Although this did not occur during the appeal period, the Board finds this evidence probative as to the issue of the Veteran's occupational impairment in general. Moreover, the May 2013 VA examiner essentially indicated that the Veteran had significant occupational impairment due to his PTSD symptoms. As such, the Board finds that the Veteran is entitled to TDIU for the entire period since July 6, 2010, which is the effective date of the award of service connection for PTSD. The benefit of the doubt rule is therefore for application for this timeframe. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER For the entire appeal period, a 70 percent rating, but no higher, is warranted for PTSD. For the entire appeal period, a TDIU is granted. ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs