Citation Nr: 1335550 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 06-07 138A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) from April 19, 2005. REPRESENTATION Veteran represented by: Valerie D. Metrakos, Esq. WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from December 1987 to September 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in New Orleans, Louisiana, which, in pertinent part, granted the Veteran's claim of service connection for PTSD, assigning an initial disability rating of 30 percent. The Veteran expressed disagreement with the assigned disability rating and perfected a substantive appeal. In March 2009, the Veteran testified at a video conferencing hearing over which the undersigned presided. A transcript of the hearing has been associated with the Veteran's claims file. During the hearing, the Veteran submitted additional evidence and waived his right to have the RO initially consider it. See 38 C.F.R. §§ 20.800, 20.1304(c) (2013). The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the hearing, the undersigned clarified the issue on appeal and inquired as to the etiology and severity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask the undersigned questions regarding his claim. The Board, therefore, concludes that it has fulfilled its duty under Bryant. This matter was previously before the Board in June 2009, at which time the Board increased the disability rating for the Veteran's PTSD from 30 percent to 70 percent, effective from the original date of service connection. The Veteran appealed the 70 percent disability rating to the United States Court of Appeals for Veterans Claims (Court). In a February 2013 Order, the Court vacated that part of the June 2009 decision that denied entitlement to a disability rating in excess of 70 percent for PTSD and remanded the appeal to the Board for action consistent with a Joint Motion for Partial Remand. The appeal is now before the Board in order to complete that action. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the paper claims file or considered by the RO. The issue of entitlement to service connection for a bipolar disorder to include as secondary to the Veteran's service connected PTSD has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board notes that it has assumed jurisdiction of the claim for TDIU from April 19, 2005, because such claim has been raised by the record and by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues listed as on appeal on the first page of this decision have been revised to reflect this development. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDINGS OF FACT 1. From the date of the Veteran's claim to April 18, 2005, the Veteran's PTSD symptoms resulted in total occupational and social impairment, due to such symptoms as: persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; and intermittent inability to perform activities of daily living. 2. From April 19, 2005, the Veteran's PTSD symptoms have caused 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 CONCLUSIONS OF LAW 1. From the date of the Veteran's claim to April 18, 2005, the criteria for a 100 percent disability rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.130, Diagnostic Code 9411 (2013). 2. From April 19, 2005, the criteria for a disability rating higher than 70 percent for PTSD, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veteran's PTSD claim arises from his disagreement with the initial disability rating following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Service treatment records, VA treatment records, Social Security Administration records, and private medical records are of record. The Veteran has been afforded a personal hearing and has been medically evaluated in conjunction with his increased rating claim. All identified and available treatment records have been secured. The duties to notify and assist have been met. Increased Disability Rating for PTSD The Veteran, through his representative, argues that the initial disability rating for his PTSD should be 100 percent dating to approximately May 2003. They note that the Veteran consistently reported suicidal and homicidal ideations during this period so that there was a persistent danger of hurting himself or others. They also assert that the Veteran's frequent refusal to leave his home equates to grossly inappropriate behavior. The February 2013 Joint Motion for Partial Remand asks that the Board provided reasons and bases that address these matters. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). There is a distinction between an appeal of an original or initial rating and a claim for an increased rating, and this distinction is important with regard to determining the evidence that can be used to decide whether the original rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). For example, the rule articulated in Francisco v. Brown, 7 Vet. App. 55, 58 (1994) -- that the present level of the Veteran's disability is the primary concern in a claim for an increased rating and that past medical reports should not be given precedence over current medical findings -- does not apply to the assignment of an initial rating for a disability when service connection is awarded for that disability. Fenderson, 12 Vet. App. at 126. Instead, where a Veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson, 12 Vet. App. at 126. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See 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, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Veteran's PTSD is currently rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). Anxiety disorders, which include PTSD, are rated under the criteria set forth in Diagnostic Code 9440. Such disorders are rated under the General Rating Formula for Mental Disorders, which provides that a 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. The current 70 percent disability rating is appropriate when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased disability rating, the adjudicator must consider all symptoms of a Veteran's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF of 31 to 40 is defined as exhibiting some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as 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). A GAF score of 61-70 indicates some mild symptoms or some difficulty in social, occupational, or school function, but generally functioning well, with some meaningful interpersonal relationships. A physician's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage disability rating is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126 (2013); VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995). The Board sees the Veteran's medical records indicate that he has a history of substance abuse. He has not claimed any substance abuse disorder to be service connected - including as part and parcel of his service-connected psychiatric disorder (namely, his PTSD). VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims, as here, filed after October 31, 1990. See VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). See also 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.301(a) and (d). Further, in Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that compensation could not be awarded pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol abuse disability incurred during service or for any secondary disability that resulted from primary alcohol abuse during service. Id., at 1376. The Federal Circuit accepted there can be service connection for compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. But the Federal Circuit went on to point out that Veterans may only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id., at 1381. An award of compensation on such a basis would only result "where there is clear medical evidence establishing the alcohol or drug abuse disability is indeed caused by a Veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. Here, though, the Veteran does not have a service-connected disability, in particular his psychiatric disability (PTSD), which includes substance abuse as one of its attendant symptoms. Therefore, any functional and other impairment attributable to any substance abuse disorder cannot be considered as grounds for increasing the rating for his psychiatric disorder (PTSD). See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52,698 (1996)). In September 2002, the RO granted the Veteran's claim of service connection and assigned an initial 30 percent disability rating effective January 23, 2002, the date the RO received the Veteran's claim. The June 2009 Board decision increased the disability to the current 70 percent, also effective from January 23, 2002. The Veteran's VA treatment records from April 2002 to June 2002 include mental health notes describing his PTSD symptoms. These outpatient treatment records included symptoms of impulsive behavior; avoidance; high-risk sexual behavior; perfectionist behavior during manic episode; depressive aspects classic with the exception of increased food consumption; suicidal and homicidal ideations; hallucinations; sleeping too much; eating too much; feeling helpless, hopeless, and worthless; crying spells; isolating himself; having recurrent memories; violent and self-destructive behavior; racing thoughts; being irritable and "antsy nervous;" having resentment, agitation, trust problems, vindictive attitude, and avoidance; re-experiencing (intrusive thoughts, nightmares, flashbacks, physiological and psychological reactivity); numbing/avoidance (avoidance of thoughts, feelings, conversations, places, people, situations, that are reminders of trauma, loss of interest in activities, emotional detachment, sense of foreshortened future); and hyperarousal (sleep difficulty, poor concentration, irritability, hypervigilence). The GAF scores during this period ranged from 45 to 75. A VA examination report dated in July 2002 provides that the Veteran had the following subjective symptoms associated with his PTSD: having great concern for children because of his own experiences; intrusive thoughts; nightmares and remembrances of traumatic events; difficulty sleeping; varying ability to concentrate; mood cycles; depression lasting up to 4 months; mood swings controlled by Depakote. On examination, he was oriented in all spheres; there was no evidence of memory loss; there were no obsessive or religious behaviors; his rate and flow of speech was satisfactory; he showed no evidence of mania or depression; there was no history of panic attacks; his anxiety manifested as worry regarding his social situation; he reported no delusions or hallucinations when sober. The examiner assigned a GAF of 65 for PTSD. VA outpatient treatment records dated from August 2002 to November 2002 include mental health notes describing his PTSD symptoms. The symptoms included serious depression; serious anxiety or tension; suicidal ideation; eating too much; fair concentration; challenged memory; poor sleep; nightmares; hypervigilence; isolation; homelessness; and auditory hallucinations. It was indicated that the Veteran's claims to be disabled and unable to work had merit. A January 2003 letter from a VA readjustment counseling specialist describes the Veteran's PTSD symptoms as including sleep disturbances, nightmares, anxiety, hypervigilence, isolation, depressed mood, and homelessness; and also reports the Veteran's being unstable, unemployed, having no friends, having difficulty in establishing social relationships, having difficulty sleeping, having trust issues, and having anxiety. A VA examination report dated in January 2003 shows that the Veteran reported becoming depressed and having "chaotic" sleep during those times, his mood and sleep varying over time; having a good appetite; having energy at a fair level; and occasional suicidal ideations with no plans towards carrying it out. He also reported anxiety, distrust of others, being especially sensitive to abuse, difficulty with relationships and employment, isolating himself, and moods oscillating between hypomanic and depressed. VA outpatient treatment records dated from February 2003 to May 2003 show the Veteran as having serious anxiety or tension, but no suicidal ideation; and that his PTSD was very significantly affecting his work and social life, as his anxiety would make getting and keeping jobs and friendships difficult if not impossible. The reports note marked restriction of activities of daily living, extreme difficulties in maintaining social functioning, marked difficulties in maintaining concentration, persistence, or pace, and repeated episodes of decompensation, each of extended duration. A May 2003 symptom checklist includes a notation next to thoughts of suicide that reads "now resolved on meds". Other notations state that the Veteran was so fearful, anxious, and angry he could not leave his house. His heart would pound and he would be covered in sweat. A June 2003 Social Security Administration decision regarding the Veteran's claim for benefits found that the Veteran had not engaged in substantial gainful activity since January 2002; that the medical evidence established that the Veteran had severe impairment due to depression and PTSD; that the severity of these impairments was such that it was expected to preclude employment him from working for at least 12 months; that the Veteran's substance abuse disorder was not a factor; and that the Veteran had been disabled since January 2002. Furthermore, the report noted that the Veteran had appetite disturbance with weight gain; sleep disturbance or almost no sleep without medication; decreased energy; feelings of guilt or worthlessness; difficulty concentrating; hallucinations, delusions, or paranoid thinking; hyperactivity; pressure of speech, flight of ideas; easy distractibility; episodic periods manifested by both depressive and manic syndromes; recurrent and intrusive recollections of traumatic events. It also noted that the Veteran was angry, fearful, anxious, and tearful; that he has difficulty with social functioning and concentration, persistence and pace and episodes of decompensation; and that he is frequently afraid to leave his house. A VA outpatient treatment record dated in July 2004 from the Veteran's treating VA physician provides that the Veteran's PTSD and bipolar disorder rendered him completely and permanently disabled. VA outpatient treatment records dated from November 2003 to February 2005 include mental health notes describing his PTSD symptoms. In July 2004 his mood was described as "feeling good," his sleep as fair with medication, nightmares as infrequent, his appetite as excessive, and his memory and concentration as having some problems. In September 2004 his mood was described as "okay," his sleep as good with medication, his memory was getting better, and that his concentration was not as good as the Veteran wanted it to be. A VA examination report dated in April 2005 shows that the Veteran's current symptoms included two re-experiencing, four avoidance, and four arousal symptoms; nightmares twice a week; distressing memories causing significant anger and self-doubt; difficulty maintaining sleep; mild irritability; exaggerated startle; hypervigilence. It also provided that the Veteran's PTSD symptoms impaired his ability to trust and relate to others; and that he was socially isolated, not having any romantic relationships, friends, or contact with his family. It also noted the Veteran's positive progress in his college program. It described the Veteran as alert and oriented to time place, person, and situation; neatly groomed with good hygiene; of average affect; normal speech; having no delusions or hallucinations; denying suicidal or homicidal ideations; and having a GAF score of 60. A September 2006 letter from a counselor at the university where the Veteran is a student provides that the Veteran was in therapy and was maintaining class participation and his grade point average. A VA outpatient treatment record dated in January 2007 shows that the Veteran's mood was good, his appetite was good, his memory was coming and going, and his concentration was fair and variable. It reported the Veteran's fear of becoming hypomanic as well as his denial of suicidal or homicidal ideation or hallucinations. During an August 2007 hearing at the RO, the Veteran provided that he was currently carrying 12 hours of coursework on the college level towards an accounting degree and that he lived alone in an apartment. He stated that he previously had a roommate, but that they did not have discussions or do things together. The Veteran said that he did not attend social gatherings and that he had not done anything with his family in years. He provided that he was making academic progress, although not with honors. He also stated that he gets 4 to 6 hours of sleep per night and that he had "night terrors." An October 2007 note from the Veteran's treating VA physician provides that the Veteran's PTSD symptoms caused him to be suspicious of others, isolating, hypervigilent, frequently depressed, struggling with motivation, having difficulty with sleeping, and having nightmares. It also states that he had no friends even though he had been going to the same college for two years and that he would periodically become suicidal. It further indicated that while the Veteran was not totally impaired, he was significantly and chronically impaired; and that while he was a full-time student, he struggled to keep up. The Veteran's records from his university counseling show that, in January 2008, he expressed being considerably or extremely timid or shy; ill at ease with others; lacking friends; feeling shy with the opposite sex; blaming, criticizing or condemning of others; staying by himself a lot; feeling tense or nervous; having problems with family, spouse, or significant other; being overweight; and having problems with anxiety. He expressed being slightly or moderately feeling depressed; being easily embarrassed; feeling on the verge of tears; being discouraged; having trouble keeping conversations going; feeling hopeless; having headaches; having an upset stomach; having sexual problems; being upset by academic concerns; using alcohol and drugs; and having stress related to work and school. The Veteran's VA treatment records include a February 2008 note describing his mood as pretty good, his sleep as having improved, his nightmares as persistent, his appetite as good, his memory as variable with forgetfulness, and his concentration as fair to good. It also provides that the Veteran was irritable but with no suicidal or homicidal ideations. In his March 2009 hearing testimony, the Veteran provided that his attending college is essentially part of his treatment -a means of addressing his social isolation. He expressed his inability to secure employment, even though he has a bachelor's degree and is working on a master's. The Veteran further provided that as to his daily life, there were days when he was unable to get off the couch, that he lacked motivation, especially towards keeping his house clean, and that he neither made nor received phone calls. A VA examination report dated October 2009 indicates that the Veteran's claims folder and medical records were reviewed. He did not have any close friends or even good acquaintances. The Veteran had not worked since being laid off from his work study job. His symptoms included reports of severe depression, poor self-esteem, lack of energy and interests, staying in his residence or even his bed, subjective sadness and irritability, daily thoughts and nightmares of the traumatic experience in service, sleep that is much disrupted, and fear of meeting strangers. His behavior was appropriate, he was alert and oriented, there was no memory loss, his appearance was neat with adequate hygiene, his affect was flat and depressed, and his speech was normal. The Veteran denied hallucinations and delusions. He reported suicidal and homicidal ideations without plan or intent. There was no impairment of thought process or communication. The Veteran also had diminished concentration, indecisiveness, insomnia, psychomotor retardation, and feelings of worthlessness and guilt. The diagnostic impression was PTSD, a major depressive disorder that was severe and recurrent, alcohol abuse in remission, and bipolar disorder. The GAF was 55. The examiner stated that it was premature to determine if the PTSD was bad enough to preclude him from employment, and noted that he had managed to complete his degree. VA treatment records from April 2011 to June 2011 indicate that the Veteran continued to struggle with extremes of idealization and devaluation, low self-esteem, rejection sensitivity, and difficulty with distress tolerance. Symptoms included emotional numbing, feelings of distance, and loss of interest in activities. The Veteran reported doing much better in April 2011 after obtaining a new job. May 2011 records say that he was doing better than his initial presentation. The Veteran denied having suicidal or homicidal ideations in June 2011. He was also engaging in a potential romantic relationship. After consideration of the Veteran's contentions and the medical evidence of record, the Board finds that an initial 100 percent disability rating is appropriate from the date of claim until April 18, 2005. Prior to April 19, 2005, the evidence shows that the Veteran reported either homicidal ideations, suicidal ideations, or both on regular basis throughout 2002. This equates to a persistent danger of hurting himself or hurting other people. The May 2003 records establish that the Veteran was so fearful, anxious, and angry he could not leave his house. His heart would pound and he would be covered in sweat. This happened approximately 20 days during a six month period. Arguably, this is grossly inappropriate behavior and an intermittent inability to perform activities of daily living. When all reasonable doubt is resolved in favor of the Veteran, the Board finds that there was total occupational and social impairment during this period. This finding is supported by the July 2004 statement from the Veteran's treating physician that the Veteran's PTSD and bipolar disorder rendered him completely and permanently disabled. However, the evidence also shows that the Veteran has demonstrated some sustained improvement since his initial evaluation, beginning with the April 19, 2005 VA examination. The examination report notes the Veteran's positive progress in his college program. It described the Veteran as neatly groomed with good hygiene; of average affect; normal speech; having no delusions or hallucinations; and having a GAF score of 60. Of particular import, the Veteran now denied having suicidal or homicidal ideations. Beginning April 19, 2005, the evidence shows that the Veteran's PTSD disability picture more nearly approximates the criteria for a 70 percent disability rating. The October 2009 VA examination notes homicidal and suicidal ideations without plan or intent, but this is the only time such ideations were noted during this period. Thus, they cannot be characterized as persistent, and are consistent with a 70 percent disability rating. Similarly, the October 2009 VA examination also notes that there are days in which the Veteran does not leave his home or even get out of bed. However, the same examination notes that the Veteran had managed to finish his college degree. Other records from this period show that he went to school and worked, and April 2011 records show that he reported doing much better and having obtained a new job. When taken as a whole, the evidence beginning April 19, 2005, shows that the Veteran's PTSD has primarily been manifested by evidence of 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); and inability to establish and maintain effective relationships. This merits the assignment of a 70 percent disability rating. Additionally, the Board has considered the statements of the Veteran as to the extent of his symptoms. He is certainly competent to describe his PTSD symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); 38 C.F.R. § 3.159(a)(2). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. In light of the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that from the date of claim until April 18, 2005, the Veteran's PTSD warrants an initial 100 percent disability rating. In reaching this conclusion, the Board has applied the benefit-of-the-doubt doctrine. The Board also concludes that the preponderance of the evidence is against the claim, and a disability rating greater than 70 percent from April 19, 2005, must be denied. See 38 U.S.C.A. 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). Finally, to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular disability rating commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2013). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Here, the Board finds that a referral for an increased disability rating on an extraschedular basis is not warranted. In this regard, although the Veteran has been occasionally hospitalized for his PTSD, it has not been frequent. According to the Veteran's March 2009 hearing testimony, he was still in college pursuing an accounting degree. In any event, the Board finds that the disability picture presented by the Veteran's service-connected PTSD is not so exceptional or unusual as to render impractical the application of regular schedular standards. Thus, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial 100 percent disability rating for service-connected PTSD from the date of the Veteran's claim until April 18, 2005, is granted, subject to the laws and regulations governing the award of monetary benefits. A disability rating in excess of 70 percent for service-connected PTSD from April 19, 2005, is denied. REMAND As a result of this decision, the Veteran has been assigned a 100 percent disability rating for his service-connected PTSD, effective from the date of his claim until April 18, 2005. The Board has assumed jurisdiction of the claim of entitlement to a TDIU from April 19, 2005. A claim for TDIU is considered to be part of a claim for an increased evaluation if it is raised by the record or by the Veteran. The Board finds that it has been raised by the record in this case. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability will be considered to exist where there is impairment of mind or body 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, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (2013). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the Veteran. 38 C.F.R. §§ 3.341(a), 4.19 (2013). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income . . ." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court noted that "a claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity." The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Id. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration was given on account of the same. See 38 C.F.R. § 4.18. To receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor, which takes this case outside the norm. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In addition to the 70 percent disability rating for PTSD, Virtual VA contains a July 2012 rating decision that shows service connection has been established for tinnitus, effective from April 25, 2011. There is a combined disability rating of 70 percent, which has been in effect from January 2002. Therefore, the Veteran meets the schedular criteria for TDIU as of April 19, 2005. The Veteran was provided a VA examination in October 2009, in which the examiner stated it was "premature" to determine if the Veteran's PTSD is bad enough to preclude him from entering competitive employment. The Board finds that this opinion is inadequate to reach a determination in this matter. In this regard, the Court has held that VA has an obligation to obtain retrospective medical opinions in instances where there is competent evidence suggesting that a higher rating may be appropriate during a relevant appeals period but insufficient clinical evidence to determine whether such an increase is, in fact, warranted. See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). As such, the Board finds it necessary to remand the issue of entitlement to a TDIU from April 19, 2005, in order for a VA examiner to provide a retrospective medical opinion as to whether the Veteran was not employable over the course of the stated period due to his service-connected disabilities. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his asserted disabilities should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO shall ask the Veteran to identify all locations of VA treatment or evaluation for his asserted disabilities and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining thereto. All records obtained must be associated with the Veteran's claims file. 2. The RO shall forward the Veteran's claims file to the VA medical examiner that conducted the October 2009 examination so that a retrospective medical opinion may be provided as to whether the Veteran was not employable due to his service-connected disabilities for the period beginning April 19, 2005. The examiner is directed to provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities, either alone or combined, precluded him from securing or following substantially gainful employment consistent with his education and occupational experiences for any portion of the period that began on April 19, 2005. If the answer to the foregoing is in the affirmative, kindly approximate the date on which the evidence first demonstrates that the Veteran became unemployable. Also, if the Veteran did become unemployable at any time beginning on April 19, 2005, is there any subsequent period of time during which the Veteran become able to resume gainful employment? The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. The examiner must provide reasons for the opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. If the October 2009 VA examiner is no longer available, the claims file should be forwarded to a similarly qualified physician in order to answer the foregoing questions. A new examination need not be scheduled unless deemed necessary by the examiner. 3. The RO will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The RO will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs