Citation Nr: 1336723 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 10-13 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to December 2, 2009. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: James Fausone, Esq. ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1975 to August 1979 and from October 1994 to August 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The RO granted service connection for PTSD and assigned a 30 percent disability rating, effective December 24, 2008 (the date of claim). In an October 2010 rating decision, the RO increased the disability rating to 70 percent, effective October 19, 2010. In an April 2012 decision, the Board (1) denied an initial rating in excess of 30 percent for PTSD prior to December 2, 2009, (2) granted a rating of 70 percent for PTSD as of December 2, 2009, and (3) denied an initial rating in excess of 70 percent for PTSD as of December 2, 2009. The Veteran appealed the Board's April 2012 decision for the issue of an initial rating in excess of 30 percent for PTSD prior to December 2, 2009 to the United States Court of Appeals for Veterans Claims (Court). By order dated April 2013, the Court issued a Memorandum Decision, set aside the April 2012 Board decision for this issue, and remanded this issue to the Board for compliance with the terms of the Memorandum Decision. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system and the "Virtual Benefits Management System (VBMS)" to ensure a total review of the evidence. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDING OF FACT Prior to December 2, 2009, the evidence of record demonstrated that the Veteran's PTSD was primarily manifested by some depressed mood and chronic sleep impairment; such that he experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; but his symptoms were not of such severity to produce occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for PTSD prior to December 2, 2009 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Regulations do not require that all cases show all findings specified by the rating schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In making all determinations, the Board must consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Pursuant to the General Rating Formula for Mental Disorders, the Veteran's PTSD is rated at 30 percent disabling prior to December 2, 2009. See 38 C.F.R. § 4.130, DC 9411. A 30 percent rating is assigned when PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as (for example only): depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is assigned when PTSD causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is assigned when PTSD causes 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); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when PTSD causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. The nomenclature employed in the portion of VA's rating schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. Under DSM-IV, GAF scores ranging between 61 and 70 are assigned when there are some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but when the individual is functioning pretty well and has some meaningful interpersonal relationships. As the Federal Circuit explained, evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). Pursuant to the April 2013 Memorandum Decision, the Court held the Board's finding that the chokehold incident was "the first documented incident of impaired impulse control" is clearly erroneous. That documentation reveals the chokehold incident was not an isolated occurrence but, instead, the latest incident in a series of inappropriate and physically aggressive interactions with students. This suggests the Veteran began to experience impaired impulse control prior to the chokehold incident. Moreover, the Board erred by omitting any discussion of the December 2009 reprimand letter, favorable evidence of other "incidents of physical contact," from its statement of reasons or bases regarding the claim for a rating in excess of 30 percent, which the Board will not fully consider. In December 2008, the Veteran was seen for an initial VA evaluation. The Veteran was noted to have been married for 30 plus years. He reported an in-service stressor incident in which his naval ship ran over a small fishing boat, killing several fishermen. This incident had reportedly led to feelings of depression and the Veteran asserted that he had considered suicide in the past and thought through a plan, which was stopped by thoughts about his wife. In an August 2013 statement, the Veteran's representative also requests the Board to consider that this December 2008 evaluation report notes the Veteran "continues having nightmares and having problems with insomnia over the past 2-3 years. He feels depressed. He has thought about suicide . . . he has thought through a plan." In January 2009, the Veteran was first seen by VA mental health. He reported worsening problems with sleep, low mood, irritability, and recent suicidal ideation. The suicidal ideation mainly involved his lack of desire to return to work. However, he specifically denied experiencing any intent to act on any of the thoughts. The Veteran continued to work with high school kids in an Reserve Officers' Training Corps (ROTC) program where he had been for seven years. The job involved a lot of organizing, and he reported working involved 60-80 hour work weeks. It is important for the Veteran to understand that this fact (working 60 to 80 hours a week) would provide some limited evidence against the Veteran's claim as the rating criteria, very generally, is based on impairment of industrial capacity (very simply stated, impairment in the ability to work). The Veteran described the in-service ship accident on which his PTSD diagnosis was based and he asserted that he had become increasingly distressed by the events. He described intrusive memories, hypervigilance, and recurring nightmares. He also reported being very uncomfortable in groups, avoiding contact when possible. The Veteran was noted to have been married for 30+ years, with two children, one of whom lived at home. He reported enjoying running. Clinical findings revealed the Veteran was engaging, but anxious, his speech was normal, and his affect was full. The Veteran reported depression and irritability, as well as difficulty sleeping. The Veteran was noted to be a good historian. He acknowledged suicidal ideation, but denied any intent. The medical professional assigned a GAF score of 65 in acknowledgment of mild psychiatric symptomatology, providing evidence against this claim. In February 2009, the Veteran reported that his sleep remained poor with periodic nightmares, stating that he frequently awoke with a sweat, believing that he is on a ship. His work stresses continued but were noted to be manageable. The Veteran was concerned that cuts to the school budget might lead to the cancelation of the program he ran, but he was comfortable that he would have enough time to find another job if this happened. Several records from the Vet Center were also received in March 2009. In early March, the Veteran reported being placed on anti-depressants after being bothered by nightmares occurring multiple times per week. The Veteran stated that he was willing to consider medication. Later in March 2009, the Veteran showed symptoms in the severe range of the Beck inventory. He was told that it was important to continue taking his medication. In May 2009, the Veteran had a Beck Score of 42, suggesting severe range of depressive symptoms. The Veteran stated that he wife had noticed a decrease in anger/irritability since he had started on anti-depressants a month earlier. The Veteran acknowledged that he felt more positive about life situations and was less likely to act on angry thoughts. The medical professional stated that the Veteran had severe PTSD symptoms. The Veteran was provided with a VA examination in May 2009, at which he reported that his marriage was going well and that he had a good relationship with his children. Socially, the Veteran reported associating with his coworkers and said that he would get together with friends once every two weeks and would go to parties and barbecues. The Veteran also reported hobbies such as boating, fishing, and running. The Veteran was in his seventh year as a high school teacher, and he did not report any disciplinary actions or missed time from work, providing more evidence against this claim. The Veteran stated that he would like to quit his job, but did not feel he was financially able to do so. The Veteran stated that his PTSD symptoms, such as nightmares, occurred approximately once a month. He indicated that at times he had intrusive thoughts, and he sought to avoid reminders of the incident. He did state that he felt somewhat distant. The Veteran reported sleep problems, but he acknowledged that his sleeping had improved since being prescribed medication. At the examination, the Veteran spoke freely and spontaneously. He was fully oriented and his thought processes were logical and goal-directed. There were no signs of major psychopathology such as hallucinations or delusions. The Veteran's affect was within normal limits, and his mood was generally neutral to dysphoric. Attention, concentration and memory were intact. The Veteran was able to complete his activities of daily living. The examiner diagnosed PTSD and assigned a GAF of 63, stating that the Veteran had moderate occupational impairment in that he had discontinued his military career, but that he was not having much occupational difficulty at that time. The Veteran was also having only a mild social impact, providing more evidence against this claim. Prior to December 2009, the evidence showed that the Veteran was able to work, had a family and friends. He also listed several hobbies. The evidence simply does not show that the Veteran's PTSD symptoms caused occupational and social impairment with reduced reliability and productivity prior to December 2009. There was no indication (for example only) of flattened affect; speech problems, panic attacks more than once a week; difficulty in understanding complex commands; impaired memory, judgment, or abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. At the Veteran's VA examination in May 2009, the Veteran's symptoms were found to be mild. The Veteran reported working full-time with no disciplinary issues, and he described going to barbecues with friends several times per month. This is not to say that the Veteran was not experiencing any psychiatric symptoms, but rather that the symptoms were not shown to be of sufficient severity as to warrant a rating in excess of 30 percent. The Board acknowledges the reports from the Vet Center which suggest that testing had shown severe PTSD and depression symptoms, but these reports made no allowance of the Veteran's ability to perform a regular job (more than 40 hours per week), his long-term marriage, and his reports of friends. Moreover, one test was noted to have created an invalid profile as the scores suggested an individual who was making an attempt to present himself as especially symptomatic. Additionally, a VA examination was provided that same month as the Vet Center treatment sessions found only mild symptoms, and provided a more thorough and in depth discussion of the reasons for such a conclusion, which the Board has assigned greater probative value than the examination finding severe PTSD. In this regard, it is important for the Veteran to understand that not all evidence in this record supports a 30 percent evaluation, let alone a 50 percent evaluation, let alone a 70 percent evaluation, however, at particular points, the Board finds that enough evidence and facts supports the Veteran's claim, which provided the basis for the 70% grant by VA. The Board is aware that the Veteran reported periodic suicidal ideation in several VA treatment records, and suicidal ideation can be a symptom of a 70 percent rating. However, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. The diagnostic criteria requires, in the context of determining whether a higher disability evaluation is warranted, not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 117-18. Moreover, symptoms listed in VA's General Rating Formula for 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. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). As such, the mere report alone of suicidal ideation can support a 70 percent rating, but does not presumptively mandate the assignment of a 70 percent. Here, the evidence of record overwhelmingly establishes that prior to December 2009, the Veteran was functioning well both socially and occupationally. He was employed full-time, had been married for a number of years, and reported having several friendships. While he did provide some reports of suicidal ideation, he did not ever suggest that he had created any type of plan, and he acknowledge that thoughts of his family prevented him from ever really considering suicide. As such, it does not appear that any suicidal ideation that the Veteran actually experienced sufficiently impacted either his social or occupational functioning or raised to a moderate degree in severity such that it would support a 70 percent rating. In his substantive appeal which was received in March 2010, the Veteran argued that the 30 percent rating was based only on a 20-minute VA examination, as well as the fact that he continued to be able to work. He stated that he had been unable to find another job and was working with Vocational rehabilitation to retrain. He also reported that in December 2009, he "snapped" at work and wrestled with a student at the high school. He indicated that he was placed on administrative leave and was now on probation. He stated that he attended mandatory events with colleagues but had no real friends. He stated that he was completely embarrassed as a professional. He indicated that he did not have any family in the area other than his wife, with whom he spent most of his time. He was concerned about losing his teaching license which he felt would render him unemployable. He indicated that his nightmares were more frequent and increased by stress from the suspension. He asserted that his depression had increased to the point that he was again contemplating suicide, but his relationship with his wife was holding him back. In a December 28, 2009 reprimand letter from work, received by the RO in September 2010, the Veteran was formally disciplined for behavior that was both unprofessional and inappropriate. It was explained that: On the afternoon of December 2, 2009, a student reported that [the Veteran] had become angry and placed him in a chokehold after the student made some comments questioning the pushups that [the Veteran] was performing. . . . Witnesses were unanimous in their agreement with the complaint that [the Veteran] was angry when he placed the student in the physical hold. [Moreover,] [i]n campus conversations with multiple students, it was learned that [the Veteran] commonly pinches students, twists ears, grabs belts and lifts students, swats students in the back of their heads, twists male students nipples, and grabs the underwear of male students and pulls it upwards. These actions are most often done with an element of playfulness, though multiple students reported that this is done in order to get the attention of students and direct them to do something differently. There were additional reports that the Veteran wrestles with students in an aggressive manner, to include having testicles grabbed, a shirt ripped, and scratches in a wrestling match. In addition, "a student was taped to a bench in response to the student 'running his mouth.'" The reprimand letter explained that "[t]hough these incidents are not done in malice or with intent to harm, they do represent a level of physical contact that is inappropriate between any school staff member and any student." The Board notes that this report was received after December 2, 2009, and the Board believes that at the time the Veteran submitted his substantive appeal that his PTSD related symptoms had actually increased in severity, such that they did then support a 70 percent rating. Nevertheless, there was no information conveyed in the substantive appeal or the December 2009 reprimand letter to change the Board's opinion that a rating in excess of 30 percent was not warranted prior to December 2009, and a claim in excess of 30 percent earlier than December 2, 2009 is denied. In fact, it supports the Board's findings. While the letter in question clearly cites occational problems prior to December 28, 2009, this fact simply does not support a finding of a higher evaluation prior to December 2, 2009. In this regard, it is important for the Veteran to understand that a 30% evaluation is a highly significant disability evaluation, indicating, very generally a 30% reduction in industrial capacity, which will, on occasion, cause the Veteran's problems, which the Board would not dispute. If the Veteran had not problems with his PTSD prior to December 2009, there would be no basis for the 30% evaluation, let alone a higher evaluation. In this regard, the Board understands the highly stressful nature of the Veteran's post-service profession, but this fact does not provide a basis to find that the Veteran's PTSD was worse than 30%. The fact that he was in a stressfull environement does not provide a basis to find his PTSD was worse. In evaluating this case fully, it is important to look at the clear definition of a 30% evaluation for PTSD: a 30 percent rating is assigned when PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). This appears to be what occurred with the Veteran: Prior to December 2009 he functioned satisfactorily, with routine behavior, self-care, and normal conversation with his students and family (his own statements would appear to support this finding), but then "occasionally" he had a problem, leading to the December 2009 reprimand. In effect, this shows the typical problem a Veteran with a 30% evaluation with PTSD would have, rather than a basis to increase the evaluation: an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In this regard, it is important to understand the very real problems a Veteran with a 30% evaluation with PTSD would have in the Veteran's chosen occupation, which the Board would not dispute. Importantly, it does not show or indicate reduced reliability and productivity, the basis of a 50% evaluation. If this was a constant problem, one would suggest a much harsher punishment, particularly as the Veteran was dealing with students, which only supports the finding that this evidence supports the Board's determination. The Board has considered the evidence prior to the December 2, 2009 incident, but finds that it simply does not show that a rating in excess of 30 percent was warranted. While the December 2009 reprimand letter suggests other "incidents of physical contact" prior to December 2, 2009, according to the April 2013 Memorandum Decision, such incidents were characterized as performed with "an element of playfulness," "in order to get the attention of students and direct them to do something differently," and "not done in malice or with intent to harm." The report does not suggest in any way that the Veteran's actions were normal, or regular. If it were, it is highly unlikely, in the extreme, that the Veteran would have simply received a reprimand from his supervisor. At best, this was an occasional problem caused by PTSD, the near definition of a Veteran with a 30% PTSD evaluation. Even if the Board presumes that these other "incidents of physical contact" occurred over a period of time prior to December 2, 2009 (as suggested in the April 2013 Memorandum Decision and August 2013 statement by the Veteran's representative, which the Board fully accepts), such incidents were not performed pursuant to psychiatric symptomatology, such as impaired impulse control. In contrast, the December 2009 chokehold incident was reportedly performed out of anger, which is more indicative of an impaired impulse control situation. Therefore, the Board finds that the evidence of record does not demonstrate psychiatric symptomatology, to include of impaired impulse control, to warrant a rating in excess of 30 percent prior to December 2, 2009, but, in fact, a finding of a Veteran with a 30% evaluation for PTSD (occasional problems). Furthermore, the Veteran was working a full-time job, working 60-80 hours per week, he was engaged in family life, and he reported friends and hobbies, providing evidence against the claim. The Veteran reported at the May 2009 VA examination to working full-time as a high school teacher and did not report any disciplinary actions from work, providing more evidence against his own claim. He also reported associating with his coworkers and getting together with friends once every two weeks for parties and barbecues, thus not indicating unintentional adverse physical contact with others, providing more evidence against his own claim. The May 2009 VA examiner also concluded that the Veteran was not having much occupational difficulty at that time and was also having only a mild social impact, providing highly probative evidence against this claim. The Board acknowledges that the medical professional at the Vet Center categorized the Veteran's symptoms as severe, but none of the factors enumerated in the preceding paragraph were discussed, limiting the probative value of the finding. Some of the Veteran's own statements do not support this finding. Moreover, it appears that the Veteran's medication regiment was still being worked out in the beginning which may have been responsible for some irritability (this is not clear, and the Board is not in a position to make a medical judgment). Nevertheless, the Veteran was provided with the May 2009 VA examination to assess the severity of his symptoms, and the examiner was able to review the various treatment records. However, after reviewing the available evidence and examining the Veteran, the examiner concluded that the Veteran's PTSD related symptomatology was mild (as evidenced by the GAF of 62). This score was consistent with the GAF of 65 that had been assigned at the Veteran's initial mental health evaluation. The reprimand only supports the finding of the May 2009 VA examination that this Veteran had mild PTSD, it does not suggest a worsening of the condition from May 2009. Even a Veteran with mild PTSD (less than a 30% evaluation) is placed in a stressful situation (such as a high school) he or she is going to have tribulations. If he or she did not, there would simply be no basis for a finding that the Veteran had PTSD at all. The Board concludes that a rating in excess of 30 percent is not warranted prior to December 2, 2009, and the Veteran's claim is denied. An extra-schedular rating may be provided in exceptional cases. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the medical evidence fails to show anything unique or unusual about the Veteran's PTSD that would render the schedular criteria inadequate. The Veteran's main symptoms are impaired impulse control, nightmares, and reduced social and occupational functioning, which are specifically contemplated in the rating assigned. As such, it would not be found that his disability met the "governing norms" of an extra-schedular rating. Accordingly, referral for consideration of an extra-schedular rating prior to December 2, 2009 is not warranted. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the duty to notify has been satisfied by a February 2009 letter. Regarding the duty to assist, the evidence of record includes December 2009 reprimand letter, VA outpatient treatment records, Vet Center records, and a May 2009 VA examination report. There are no apparent inconsistencies or ambiguities in the VA examination report, and neither has the Veteran or his attorney challenged the adequacy or thoroughness, or the competency of the examiner. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009). Another examination to determine the Veteran's PTSD prior to December 2009 in 2014 would be of highly limited probative value to the Board. The Veteran's condition has simply changed. The Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. The Board finds no further assistance to the Veteran with the development of evidence is required. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER An initial rating in excess of 30 percent for PTSD prior to December 2, 2009, is denied. REMAND A remand is required in this case to ensure there is a complete record upon which to decide the issue of a TDIU. The Veteran is service connected for PTSD at 30 percent disabling, effective December 24, 2008 and at 70 percent disabling, effective December 2, 2009, as well as for tinnitus at 10 percent disabling, effective March 30, 2006. As a result, the Board finds that the Veteran's combined disability rating is 70 percent effective December 2, 2009. See 38 C.F.R. § 4.16(a) (2013). In the April 2012 Board decision, the Board determined that the evidence is against a finding that the Veteran is totally disabled due to individual unemployability because of his service-connected PTSD. Subsequently, the RO received in September 2012 the Veteran's completed Application for Increased Compensation Based on Unemployability, VA Form 21-8940, which notes his date of employment ended in June 2012. The Veteran also reported on this application that he received a notice of commission action to charge for professional misconduct and a public reprimand in February 2011, and he resigned from his position. In light of the Veteran's current unemployment status, combined disability rating of 70 percent, effective December 2, 2009, and the Court's holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Board finds that the issue of a TDIU on a schedular basis is currently on appeal and a VA examination and medical opinion are needed to ascertain the Veteran's functional impairment caused by his service-connected PTSD, notwithstanding the fact that the Court effectively affirmed (better stated, it was not appeal) the Board's decision regarding the current evaluation of the Veteran's PTSD condition, which included the Board's finding in April 2012 that TDIU was not warranted. In light of the Court's determination, this is a complex situation (the issue before the Board is entitlement to an initial rating in excess of 30 percent for PTSD prior to December 2, 2009 and the Veteran filed the TDIU claim in September 2012, about four years outside the Board's jurisdiction of this case). However, in light of the fact that the Board wishes to give the Veteran every consideration, and the facts, as they existed in April 2012, have fundamentally changed, the Board believes this to be an appropriate action, given the atypical facts of this case. Such development is necessary for VA to determine whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD for the assignment of a TDIU on a schedular basis. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for the appropriate VA examination in connection with the claim for TDIU. Specifically, the physician is requested to provide an opinion as to the Veteran's functional impairment caused by his service-connected PTSD. The opinion should take into consideration the Veteran's education and occupational experience, but irrespective of age and any nonservice-connected disabilities. If an opinion or the requested information cannot be provided without resorting to speculation, the VA physician should state so and explain why it would be speculative to respond. 2. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2013). This claim must be afforded expeditious treatment. The law requires that all claims 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. 2013). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs