Citation Nr: 1335115 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 08-12 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a sleep disorder, for substitution purposes. 2. Prior to September 14, 2009, entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD), for substitution purposes. 3. Entitlement to a total disability rating based on unemployability as a result of service-connected disabilities (TDIU), for substitution purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied a claim for service connection for sleep apnea and continued a 30 percent disability evaluation for PTSD. In a November 2009 rating decision, the RO increased the rating assigned for PTSD to 70 percent, effective September 14, 2009. This case was previously before the Board in August 2011, when the Board granted a disability rating of 50 percent for PTSD prior to September 14, 2009, and denied a disability rating in excess of 70 percent as of September 14, 2009. The Veteran timely appealed this portion of the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2012, pursuant to a Joint Motion for Remand (Joint Motion), the Court vacated and remanded the Board's August 2011 decision to the extent it denied a disability rating for PTSD in excess of 50 percent prior to September 14, 2009. The Joint Motion explicitly stated that it did not disturb the Board's August 2011 determination that the Veteran was not entitled to a 70 percent rating from September 14, 2009, and that issue is thus not before the Board at this time. In August 2011, the Board additionally remanded the issue of service connection for sleep apnea for further development, but this remanded issue was not addressed by the Joint Motion. The record reflects that the Veteran died in April 2012. The Veteran's surviving spouse filed a claim seeking to be substituted for the Veteran for the purpose of processing his claims to completion. In November 2012, the Court granted the motion of the surviving spouse for substitution, and the surviving spouse is now the Appellant in this case. The issues of entitlement to service connection for a sleep disorder and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the Appellant if additional action is required on her part. FINDINGS OF FACT 1. Prior to September 14, 2008, the Veteran's PTSD was manifested by symptoms producing no more than occupational and social impairment with reduced reliability and productivity. 2. From September 14, 2008 to September 14, 2009, the Veteran's PTSD was manifested by symptoms producing no more than occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. Prior to September 14, 2008, the criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). 2. From September 14, 2008 to September 14, 2009, the criteria for a disability rating of 70 percent, but not greater, for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (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, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (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 decided herein. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must address reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Prior to the issuance of the November 2007 rating decision that is the subject of this appeal, the Veteran was informed of the evidence necessary to substantiate a claim for an increased rating and was advised of his and VA's respective duties in obtaining evidence by means of an August 2007 letter from the RO. Accordingly, the duty to notify has been fulfilled. VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). This duty has also been met, as the Veteran's VA and private treatment records have been associated with the claims folder and he was afforded several appropriate VA examinations in connection with his claim for increased rating. The record does not suggest the existence of additional, pertinent evidence that has not been obtained. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Appellant. Increased Rating Disability ratings 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 (West 2002); 38 C.F.R. Part 4 (2013). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2013). When there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25 (2013); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding-the evaluation of the same manifestation of a disability under different diagnostic codes-is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2013). Under the General Rating Formula for Mental Disorders, in pertinent part, a 50 percent rating is assigned 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; and difficulty establishing effective work and social relationships. A 70 percent rating is assigned 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 work-like setting); and an inability to establish and maintain effective relationships. A 100 percent rating is assigned 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 and place; memory loss for names of close relatives, own occupation or name. 38 C.F.R. § 4.130, Diagnostic Code 9434 (2013). When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran's psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency must assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (2013). Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Also relevant to the Board's analysis is the Global Assessment of Functioning (GAF) score assigned to the Veteran, which is a scale that indicates the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Carpenter v. Brown, 8 Vet. App. 240 (1995); Richard v. Brown, 9 Vet. App. 266 (1996); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV); 38 C.F.R. § 4.130 (2013). While the veteran's GAF score is not itself determinative of the most appropriate disability rating, the Board must consider it when assigning the appropriate disability rating for the veteran. VAOPGCPREC 10-95 (1995), 60 Fed. Reg. 43186 (1995). GAF scores ranging from 41 to 50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in the Veteran's social, occupational, or school functioning (e.g., no friends, unable to keep a job). GAF scores ranging from 51 to 60 indicate 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). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994); 38 C.F.R. § 4.130 (2012). Turning to the facts in the instant case, in a September 2007 treatment note, the Veteran denied experiencing depression or memory loss, but he endorsed having trouble sleeping. In a separate September 2007 depression screen, the Veteran indicated that he experienced the following symptoms nearly every day: little interest or pleasure in doing things, feeling down, depressed, or hopeless, trouble falling or staying asleep, or sleeping too much, feeling tired or having little energy, and trouble concentrating on things. The Veteran stated that he had not experienced a poor appetite or overeating. The Veteran on several days had felt badly about himself, thought that he would be better off dead, and had thoughts of hurting himself. The Veteran denied moving or speaking slowly or feelings of restlessness. In October 2007, the Appellant reported that the Veteran would disappear when friends or family members came around, and this behavior was worsening. The Appellant stated that the Veteran would become angry during conversations, and he would then pout for days. The Appellant stated that the Veteran had violent nightmares during which he appeared to be fighting. The Veteran occasionally awakened sweating, moaning, and screaming, and he was often unable to return to sleep. The Appellant often had to sleep in a different room because she feared for her safety. The Appellant stated that the Veteran sat in a bedroom all day and disconnected himself from everyone. The Appellant reported that the Veteran's inability to hold a job caused severe stress on their marriage and their ability to meet financial obligations. The Veteran underwent a VA examination in October 2007. The Veteran experienced worsening dreams about Vietnam multiple times weekly. Medication helped the Veteran fall asleep, but he did not always stay asleep. The Veteran reported that he did not want to be around others because he did not trust people and felt uncomfortable. Instead, the Veteran preferred to be alone and felt comfortable by himself. The Veteran primarily watched television. The Veteran felt easily irritated, and he indicated that he was mean to the Appellant. The Veteran felt sad most of the time, and he often thought of Vietnam, but he avoided war movies and books. The Veteran did not have close friends and did not feel close to anyone. The Veteran previously attended counseling, but he did not go often because he did not feel it was helpful. The Veteran denied suicidal or homicidal ideation. The Veteran reported that he had been married to the Appellant for 37 years, and they had two children. The Veteran and the Appellant lived with their daughter, and the Veteran had frequent contact with his son. The Veteran indicated that he did not have friends and did not go to church. The Veteran stated that he and the Appellant went out to eat about once a month, but he did not otherwise participate in other social activities. The Veteran denied a legal history. The Veteran arrived on time for the interview, and he was clean, well-groomed, and oriented to all spheres. The Veteran's demeanor was approachable and he was appropriate throughout the examination. The Veteran's affect was flat and his voice level and speech were within normal limits. The Veteran's thought processes were grossly intact and goal-directed, the Veteran's contact with reality was sound with no visual or auditory hallucinations, and there was no evidence of memory impairment. The Veteran could manage all levels of self-care and activities of daily living. The examiner's impression was that the Veteran's symptoms had worsened but that it was difficult to detect because his affect was so flat and blunted. The examiner diagnosed the Veteran with PTSD and assigned a GAF score of 52. Under the heading "effect of PTSD on occupational and social functioning," the examiner reported that the Veteran's occupational and social functioning were moderately to severely impaired, depending on the day and circumstances. In June 2008, the Veteran's son, L.M., stated that the Veteran was occasionally irritable. L.M. had never felt physically threatened by his father. L.M. reported that the Veteran's memory had deteriorated over the past ten years, including forgetting the names of family members and life-long friends. L.M. also indicated that the Veteran did not sleep on a regular schedule. In an October 2008 depression screen, the Veteran responded "not at all" to the questions concerning how often during the previous two weeks he had experienced little interest or pleasure in doing things or felt down, depressed, or hopeless. The Veteran underwent a VA examination in September 2009. The examiner noted that the Veteran's electronic records showed PTSD and depression on his problem list, and the Veteran was currently taking sertaline, which caused the Veteran to feel drowsy. The examiner observed no notes, however, relating to mental health treatment. The Veteran had not received outpatient treatment for a mental disorder, and he had not been hospitalized for a mental disorder. The Veteran indicated that he had experienced symptoms over the past year, and that he also received current treatment. The Veteran had not undergone group therapy or individual psychotherapy, and the Veteran reported that the medication did not help. The Veteran reported that he felt "somewhat" depressed, and as if he did not have a purpose in his life. The Veteran had thoughts of harming himself, but denied suicidal plan or intent. The Veteran endorsed feeling worthless, helpless, and hopeless. The Veteran's sleep was reportedly poor; the Veteran reported experiencing 3 to 5 hours of sleep nightly, depending on whether he had nightmares. The Veteran reported that he struggled to initiate and maintain sleep, and he did not feel rested upon waking. The Veteran felt tired, and his energy level and motivation were both low. The Veteran stated that he did not want to do anything, "just watch TV and stay away from everyone." The Veteran had no libido. The Veteran felt occasionally angry and struggled with decision-making, noting that he often changed his mind. He felt anger towards his wife. The Veteran managed his hygiene every couple of days. The Veteran reported feeling depressed, and he most often found himself thinking about Vietnam. The Veteran had been married to his wife for 39 years, and he described the relationship as "fair," noting that he treated his wife "kind of bad." The Veteran indicated that he physically struck his wife in December 2008 while under the influence of alcohol. This event was not his first episode of violence with his wife, but it had otherwise been several years since he physically assaulted her. The Veteran had two children; he indicated that he was not "real close" with them. The Veteran indicated that he and his wife lived with his daughter. The Veteran spoke with his son once every two weeks by phone. The Veteran had eight living siblings, but he did not speak with them. The Veteran indicated that he watched television and took care of his daughter's dog. Once every couple months, he and his daughter would go out to eat. The Veteran was socially detached and his impulse control was limited when under the influence of alcohol. The Veteran was not involved in any activities. Upon examination, the Veteran was clean, neatly groomed, and appropriately and casually dressed. Psychomotor activity was unremarkable and speech was spontaneous, clear and coherent. The Veteran's attitude was cooperative and attentive, his affect was congruent, and his mood was anxious. He was unable to perform serial sevens, but was able to spell a word forward and backward. The Veteran was oriented to person, time and place, and his thought process was linear. The Veteran's thought content was unremarkable, and there were no delusions. The Veteran understood the outcome of behavior, understood that he had a problem, and was of average intelligence. The examiner noted that sleep deprivation interfered with concentration and focus but that the Veteran was still able to accomplish tasks sometimes. There were no hallucinations, inappropriate behavior, or obsessive ritualistic behavior, and the Veteran interpreted proverbs appropriately. There were no panic attacks or homicidal thoughts and suicidal thoughts were noted before. The Veteran had fair impulse control, with the examiner noting episodes of domestic violence towards the Appellant. The Veteran maintained minimum personal hygiene and had no problems with household chores, toileting, grooming, shopping, self-feeding, bathing, and dressing, but he had slight problems with driving due to road rage and aggressive driving. The Veteran's remote, recent, and immediate memory were all normal. Symptoms of PTSD included recurrent and intrusive recollections of the event; persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness demonstrated by markedly diminished interest or participation in significant activities, feeling of detachment or estrangement from others, restricted range of affect, and sense of foreshortened future; and persistent symptoms of increased arousal by difficulty falling or staying asleep, irritability or outbursts of anger, and hypervigilance. An Axis I diagnosis of PTSD with depression was made and a GAF score of 48 was assigned. The examiner noted changes in the Veteran's functional status and quality of life since the last examination included performance in employment (that is, the Veteran did not get along with co-workers or supervisors, but instead "put up with them"), family role functioning (that is, the Veteran hit his wife and had no relationships with siblings), interpersonal relationships (no friends or acquaintances), and recreation (limited to watching TV, taking care of his daughter's dog, and occasionally dining out). PTSD was responsible for the Veteran's loss of impulse control due to angry outbursts and his lack of friends and close connections with family due to social detachment, lack of trust in others, and reduced participation in recreational activities. The Veteran's prognosis with treatment was fair to good but without it was guarded. The examiner reported that there was not total occupational and social impairment due to PTSD signs and symptoms, but the signs and symptoms of PTSD did result in deficiencies in judgment (hit his wife while under the influence of alcohol in December 2008); thinking (poor concentration and memory); family relations (hit his wife; no relationships with siblings); work (did not get along with co-workers and supervisors when he did work); and mood (depressed). Analysis - Prior to September 14, 2008 After a thorough review of the evidence, the Board finds that prior to September 14, 2008, the totality of the evidence indicates that the impact of the Veteran's PTSD on his social and industrial functioning during this time was most congruent with the currently-assigned 50 percent rating. Although the Veteran does not have all the symptomatology consistent with the assignment of a 50 percent rating, the Board finds that the impact of the Veteran's PTSD on his social and occupational functioning sufficiently approximates the degree of impairment contemplated by a 50 percent rating. 38 C.F.R. § 4.7 (2013). The Board acknowledges that the record contains evidence of certain elements of a 70 percent rating prior to September 14, 2008. However, the Board concludes that the Veteran's overall disability picture does not more nearly approximate a 70 percent rating. A 70 percent rating is assigned where the evidence shows occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. While the Board acknowledges that the record contains evidence of occupational and social impairment, it does not find that the Veteran suffered from "deficiencies in most areas," prior to August 14, 2008, as is required for a 70 percent rating. While mindful that the symptoms listed in the General Rating Formula for Mental Disorders are not meant to be used as an exhaustive list, the Board observes that the Veteran has met or approximated two of the symptoms listed as demonstrative of a 70 percent rating. The Veteran showed depression occasionally affecting his ability to function effectively, and arguable difficulty adapting to stressful circumstances. However, the Veteran did not otherwise demonstrate the symptoms associated with a 70 percent rating. In September 2007, the Veteran reported experiencing thoughts of self-harm or that he would be better off dead. At the time of the October 2007 examination, however, the Veteran denied any suicidal ideation. Therefore, despite the September 2007 notation that arguably involves suicidal ideation, the Board finds that the Veteran did not consistently experience suicidal ideation during this time. The Veteran denied experiencing obsessional behaviors that interfered with routine activities. The Veteran did not display illogical, obscure, or irrelevant speech. Although the Veteran indicated that he experienced irritability, such irritability did not result in impaired impulse control. The Veteran was also consistently oriented in all three spheres. The Veteran's hygiene was good. While the Board acknowledges the Veteran's statements that he spent much of his time alone, the Board does not find that the Veteran's desire for solitude constituted an inability to establish or maintain effective relationships. During this time, the Veteran maintained relationships with both of his children and he maintained a decades-long marriage with the Appellant. Thus, the Board finds that while the record contains a few symptoms associated with a 70 percent rating, a 70 percent rating of the Veteran's PTSD is not appropriate prior to September 14, 2008, because the evidence does not show occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In making this determination, the Board acknowledges that the March 2012 Joint Motion found that the October 2007 VA examiner stated that the Veteran's occupational and social functions were "moderately to severely impaired depending on the day and circumstances." The Joint Motion found that it was unclear whether the examiner's assessment of occasional "severe" impairment of the Veteran's occupational and social functioning was akin to the "deficiencies in most areas" associated with a 70 percent rating. The Board acknowledges that the October 2007 examiner indeed indicated that the Veteran's functioning could be severely impaired depending on the day. As stated above, however, the Board finds that despite this notation, the evidence prior to September 14, 2009, is inconsistent with a finding that the Veteran suffered from deficiencies in most areas during this time frame. Similarly, the Board concludes that the Veteran's overall disability picture prior to September 14, 2008, does not more nearly approximate the criteria for a 100 percent rating. A 100 percent rating is assigned for total occupational and social impairment. The Veteran did not present a persistent danger of hurting himself or others. The record shows no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, or grossly inappropriate behavior. The Veteran did not show an intermittent inability to perform activities of daily living, disorientation to time and place, or memory loss for the names of close relatives, his own occupation, or his own name. Therefore, the Board finds that while the record contains a few elements of a 100 percent rating, a 100 percent rating of the Veteran's PTSD was not appropriate prior to September 14, 2008. In making this determination, the Veteran's GAF score has been considered. Prior to September 14, 2008, the Veteran was assigned a GAF score of 52 during his October 2007 VA examination. The Board finds that score, which is indicative of symptoms of "moderate" severity, best approximates the currently-assigned 50 percent rating. Consideration has also been give to the lay assertions in support of the Veteran's claim. The Veteran is competent, as a layperson, to report on that as to which he has personal knowledge, such as feelings of sadness associated with depression. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(2). However, as a layperson, without the appropriate medical training and expertise, he is not competent to provide a competent and persuasive opinion on a medical matter, especially the severity of his psychiatric disability in terms of the applicable rating criteria and its effect on his ability to work. King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). Rather, that necessarily requires appropriate medical findings regarding the extent and nature of his psychiatric disorder. In sum, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 50 percent for PTSD prior to September 14, 2008. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis - From September 14, 2008 to September 14, 2009 After a thorough review of the evidence, the Board finds that from September 14, 2008 to September 14, 2009, the totality of the evidence indicates that the impact of the Veteran's PTSD on his social and industrial functioning during this time was most congruent with a 70 percent rating. Although the Veteran did not have all the symptomatology consistent with the assignment of a 70 percent rating, the Board finds that the impact of the Veteran's PTSD on his social and occupational functioning sufficiently approximated the degree of impairment contemplated by a 70 percent rating. 38 C.F.R. § 4.7 (2013). In making this determination, the Board notes that the March 2012 Joint Motion found that the September 14, 2009 VA examination stated the following: "SYMPTOMS PRESENT DURING PAST YEAR: Yes." The Joint Motion stated that the Board did not consider whether this notation suggested that a 70 percent disability rating was appropriate as of September 14, 2008, or one year prior to the September 14, 2009 examination. Upon review of the medical evidence of record, the Board finds nothing to suggest that the Veteran's symptoms demonstrated one year prior to September 14, 2009, were of less severity than those presented at the time of the September 14, 2009, VA examination. The September 2009 examiner additionally stated that the Veteran's symptoms had been present during the preceding year. Thus, the Board will give Appellant the benefit of the doubt and find that a 70 percent evaluation is appropriate from September 14, 2008, that is, the date one year prior to the September 14, 2009, VA examination. The Veteran's overall disability picture during this time does not more nearly approximate the criteria for a 100 percent rating. A 100 percent evaluation is assigned for total occupational and social impairment. The Veteran did not present a persistent danger of hurting himself or others. The record shows no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, or grossly inappropriate behavior. The Veteran did not show an intermittent inability to perform activities of daily living, disorientation to time and place, or memory loss for the names of close relatives, his own occupation, or his own name. Therefore, the Board finds that while the record contains a few elements of a 100 percent rating, a 100 percent rating of the Veteran's PTSD was not appropriate during this time frame. Consideration has also been give to the lay assertions in support of his claim. The Veteran is considered competent, as a layperson, to report on that as to which he has personal knowledge, such as feelings of sadness associated with depression. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(2). However, as a layperson, without the appropriate medical training and expertise, the Veteran is not competent to provide a competent and persuasive opinion on a medical matter, especially the severity of his psychiatric disability in terms of the applicable rating criteria and its effect on his ability to work. King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). Rather, that necessarily requires appropriate medical findings regarding the extent and nature of his psychiatric disorder. In sum, the Board finds that the preponderance of the evidence supports the award of a 70 percent disability rating, but no greater, for PTSD from September 14, 2008 to September 14, 2009. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Ratings The Board 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 that render application of the schedule impractical. 38 C.F.R. § 3.321(b) (2013); Fisher v. Principi, 4 Vet. App. 57 (1993). To determine whether to refer a claim for consideration of assignment of an extraschedular rating, first, the Board must determine whether the evidence presents such an exceptional disability picture that the schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the Veteran's level of disability and symptomatology and is found to be 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 his 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 extra-schedular rating. 38 C.F.R. § 3.321(b) (2013); Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds that the rating criteria are not inadequate, and it does not appear that the Veteran had exceptional or unusual disabilities. Appellant merely disagrees with the assigned ratings for his level of impairment. He did not have any symptoms from his service-connected PTSD that were unusual or are different from those contemplated by the schedular rating criteria. Therefore, the available schedular evaluations are adequate. The Board finds that referral for extraschedular consideration is not warranted. ORDER Prior to September 14, 2008, a disability rating in excess of 50 percent for PTSD is denied, for substitution purposes. From September 14, 2008, to September 14, 2009, a disability rating of 70 percent, but no greater, for PTSD is granted, for substitution purposes, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Appellant's claims of entitlement to service connection for a sleep disorder and a TDIU must be remanded. Although the Board regrets the delay associated with this remand, further development of the record is required before the Board may render a decision. With respect to the claim of entitlement to service connection for a sleep disorder, the Board's August 2011 Remand instructed the AMC to schedule the Veteran for an examination to address the following: The examiner should identify all sleep disorders. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any current sleep disorder had its onset during active service or is related to any in-service event, disease, or injury. The examiner is also asked to provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's service-connected PTSD caused or aggravated (i.e., caused an increased in severity of) any current sleep disorder. The Veteran underwent an examination in November 2011. The examiner checked a box stating that the Veteran's claimed condition was at least as likely as not proximately due to or the result of the Veteran's service-connected condition. As a rationale for this opinion, the examiner stated that the Veteran's moderate obstructive sleep apnea was "as less [sic] likely as not has [sic] its onset during active service or related to any in-service event, disease, or injury." The Board finds it to be unclear whether this statement related the Veteran's sleep apnea to service or not, and in either event, this statement was not accompanied by a rationale. Similarly, the examiner offered no rationale regarding the secondary relationship, if any, between the Veteran's sleep apnea and his service-connected PTSD. On remand, an addendum opinion should be solicited clarifying the relationship, if any, between the Veteran's sleep apnea and either his active duty service or his service-connected PTSD. Additionally, as the March 2012 Joint Motion noted, a claim for TDIU is part of an increased rating claim when a request for a TDIU is reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that possible entitlement to a TDIU has been raised by the record, and the claim must be remanded for additional evidentiary development. In October 2007, the Appellant indicated that the Veteran could not maintain a job, and he had lost or quit 28 jobs since they were married. The Veteran always had a problem with his co-workers, people in position of authority, or the job itself. In an October 2007 VA examination, the Veteran reported that he had not worked since July 2007. At that particular time he worked part time driving a shuttle bus, which he did for two years. The longest period of time he ever worked in any position was for 22 years as a mechanic. Although the Veteran noted that he had never been fired from a job, he often felt "fed up" with jobs and quit. He stated that through the years he had quit a total of 25 jobs and would get into arguments with co-workers and figures of authority. There were also times when he awakened feeling depressed and would either call in sick or just not report for work. In September 2009, a VA examiner noted that the Veteran had been a mechanic for 21 years and met the requirements for early retirement in 1999. On remand, a psychologist or psychiatrist of appropriate expertise should review the Veteran's claims file and offer an opinion as to whether the Veteran's service-connected disabilities precluded the Veteran from being able to obtain or retain substantially gainful employment consistent with his education and occupational experience. Accordingly, the case is REMANDED for the following actions: 1. Forward the Veteran's claims file to the examiner who conducted the November 2011 sleep apnea examination. If the November 2011 examiner is not available, then forward the Veteran's claims file to a physician of appropriate expertise. In either case, the physician must review the Veteran's claims file before rendering the following opinions: Is it at least as likely as not (that is, a probability of 50 percent or greater) that the Veteran's obstructive sleep apnea had its onset during active service or is otherwise related to any in-service event, disease, or injury? Is it at least as likely as not (that is, a probability of 50 percent or greater) that the Veteran's service-connected PTSD caused or aggravated (that is, caused an increase in severity of) any current sleep disorder. The physician must provide a complete rationale for all opinions and conclusions reached. 2. Then, forward the Veteran's claims file to an appropriate psychologist or psychiatrist. After a complete review of the Veteran's claims file, the examiner is requested to offer an opinion as to whether the Veteran's service-connected disabilities precluded him from obtaining or retaining substantially gainful employment consistent with his education and occupational experience. The opinion should be offered irrespective of age and any nonservice-connected disabilities. The examiner should provide a complete rationale for the opinion. 2. Then, after ensuring any other necessary development has been completed, readjudicate the Appellant's claims. If action remains adverse to the Appellant, provide the Appellant and her representative with a supplemental statement of the case, allow them an appropriate opportunity to respond, and the case should thereafter be returned to the Board. The Appellant has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs