Citation Nr: 1339117 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 11-12 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a rating in excess of 10 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1984 to April 1987 and from October 1988 to December 1991 and also had National Guard and reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for depression and granted a 10 percent disability rating. The following month, the Veteran submitted a statement that he was also being treated for PTSD and requested that such symptoms be considered as part of his psychiatric disability rating. In April 2009, the RO recharacterized his service-connected depression as PTSD with depression and continued the 10 percent disability rating. The Veteran testified at a Travel Board hearing in July 2012. In August 2012, additional evidence was added to the record in Virtual VA, and a waiver of RO initial review was received in November 2013. FINDING OF FACT The Veteran's PTSD with depression is not shown to be manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected PTSD with depression have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.3, 4.7, 4.126, 4.130 Diagnostic Code (Code) 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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 and 3.326(a) (2013). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Since the issue in this case (entitlement to assignment of a higher initial rating) is a downstream issue from that of service connection (for which a VCAA letter was duly sent in October 2008), another VCAA notice is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award for PTSD, statutory notice had served its purpose, and its application was no longer required. See Dingess, supra, aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran was given the opportunity to testify at a hearing before a Veterans Law Judge in July 2012. The RO has also obtained the Veteran's VA treatment records and identified private treatment records. Neither the Veteran nor his representative has identified any other pertinent records for the RO to obtain on his behalf. Further, VA has conducted necessary medical inquiry in an effort to substantiate the claim. 38 U.S.C.A. § 5103A(d). The Veteran was afforded a VA mental health examination in December 2008 and a VA PTSD examination in April 2009. As the examination reports and medical opinions contain the Veteran's medical history, findings, and opinions with rationales to support the conclusions reached in the opinions, the Board finds that the reports are adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical opinion must be based on consideration of the veteran's prior medical history and examinations and also describe the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one). The Veteran has not alleged that his condition has worsened since the April 2009 examination, and his record in Virtual VA includes VA mental health treatment records through June 2012. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that VA has complied with the notice and assistance requirements and that the Veteran is not prejudiced by a decision on the claim at this time. Legal Criteria, Factual Background, and Analysis Legal Criteria The present appeal involves the Veteran's claim that the severity of his service-connected PTSD warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service connected PTSD has been rated by the RO under the provisions of Code 9411 (previously 5242-9434, applying the same rating criteria). A 10 percent disability rating is warranted when the Veteran experiences occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is warranted if the Veteran experiences occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. The Board recognizes that the Court in Mauerhan v. Principi, 16 Vet. App. 436 (2002), stated that the 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. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV); see also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995); 38 C.F.R. § 4.130. According to the DSM-IV, a GAF score of 61-70 denotes some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. A GAF score of 51-60 indicates 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 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. Factual Background The Board notes that it has reviewed all of the evidence in the Veteran's claims file, as well as in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. In July 2008, 3 months prior to filing his initial claim for entitlement to service connection for a psychiatric disability, the Veteran was seen at a Nashville, Tennessee, VA facility for an initial psychiatric assessment. He stated that he had been battling depression since returning from Iraq in 2005. He reported erratic sleep, waking up in a panic with racing heartbeat and sweating, but denied fighting in his sleep. He noted increased teeth grinding since active service, but denied irritability or work issues. He reported getting along well with his wife and feeling comfortable with his friends. He reported occasional homicidal ideation without intent and startling easily. He complained of forgetfulness and, due to physical health issues, an inability to engage in some prior hobbies (running and skydiving). He reported a history of alcohol abuse in remission. The Veteran presented for that appointment in appropriate attire with a "pleasant, calm and cooperative" manner. His speech was judged to be normal with respect to "rate, rhythm, volume and articulation". He reported depression and rated his mood at 6 out of 10 and anxiety at 7 out of 10. He denied mania, and there was no evidence of obsessive compulsive disorder. His thought process was linear and the content within normal limits. He denied any audio or visual hallucinations. He complained of short term memory problems, but the treatment provider noted that there were "no apparent deficits". He denied suicidal ideation and had good insight and judgment. The treatment provider diagnosed depression, anxiety, and mild PTSD symptoms and assigned a GAF of 65, noting that the Veteran "over all appears to be adjusting pretty well". Similar findings were reported on initial psychology evaluations the following month. It was noted that construction noise during one appointment did not appear to affect the Veteran's composure and that he was cooperative and made good eye contact. The Veteran's GAFs were again 65. The Veteran filed his claim of service connection for depression in October 2008, and he was duly provided a VA examination in December 2008. His claims file and medical records were reviewed. The Veteran reported a good relationship with his wife, although his wife expressed concern regarding low energy and motivation. He denied experiencing any problems with his friends or at work, and had been employed by the same employer as a full time road project inspector for almost five years. He denied a history of suicide attempts or assaultiveness. He reported feeling depressed/sad/irritable at some point during the day, generally persisting the whole day, on 3-4 days per week. His wife noted restless sleeping, and the Veteran reported getting an average of 5-6 hours of sleep per night and not feeling rested. He also reported a reduction in his ability to think clearly, concentrate, and make decisions. He denied appetite changes and stated that he was able to "keep himself involved in pleasurable activities and hobbies," which included hunting, fishing, and competitive shooting. He denied suicidal ideation, endorsed occasional thoughts (without intentions or plans) of harming others, and expressed indifference about the future. His appearance was clean and he was appropriately dressed. Psychomotor activity was unremarkable. Speech was clear and coherent, and he was cooperative, attentive, and indifferent toward the examiner. Affect was flat and mood depressed. Attention was intact, and he was oriented as to person, time, and place. Though process was unremarkable, and thought content included ruminations. No delusions or hallucinations were reported. The examiner noted that the Veteran understood the outcomes of his behavior and that he had a problem. There was no evidence of inappropriate or obsessive/ritualistic behavior. No panic attacks or episodes of violence were reported, and impulse control was good. Remote and immediate memory were normal, with recent memory mildly impaired; the Veteran reported forgetting "chores and 'little things' that his wife tells him". The examiner noted "a significant history of depression" that "appear[ed] to be secondary both to his chronic pain condition and due to combat stress." He also noted that "[t]he [V]eteran's psychosocial functional status is mildly impaired at the present time" and assigned a GAF of 65, which he stated was "indicative of mild impairment in social and occupational functioning and/or mild psychiatric symptoms". The Veteran received a VA PTSD examination in April 2009. His claims file and medical records were reviewed. He reported that he had been receiving therapy for his psychological symptoms since July 2008 and that such therapy was helpful. He reported that he was happily married, although he did not engage in regular activities with his wife. He described himself as a loner and "socially withdrawn," with a few hunting and Army buddies and a friend in Ohio that he sees yearly. He enjoyed "hunting and fishing by himself or at times with his father," who he sees monthly. He sees his mother every other month. On examination, the Veteran was neatly groomed and appropriately dressed. He was restless and tense and displayed some hand wringing. Speech was hesitant, but coherent. His affect was anxious, guarded, and suspicious, and he described his mood as "[i]rritable, kind of short". His attention was intact, and he was able to do serial 7s and spell a word forward and backward. He was oriented as to person, time, and place. His thought process was rambling, circumstantial, and tangential. Though content included obsessions and non-persistent paranoid delusions. The examiner noted that the Veteran understood the outcomes of his behavior and that he had a problem. He reported sleep impairment consisting of hearing booming or banging noises twice a month, fast breathing during sleep two or three times a month, and night sweats once or twice per week. He denied hallucinations. The examiner reported inappropriate behavior in that the Veteran "[s]at stiffly in chair throughout interview, avoiding eye contact and with arms folded tightly across chest." He interpreted proverbs appropriately. He denied obsessive/ritualistic behavior, panic attacks, homicidal or suicidal thoughts, and episodes of violence and endorsed good impulse control. Memory was assessed consistent with the December 2008 examination. He was able to maintain minimum personal hygiene and there were no problems with activities of daily living. The examiner found that the Veteran's PTSD symptoms were daily, chronic, and of mild to moderate severity, noting "non-restful sleep, combat related nightmares and night sweats" as well as "daytime irritability and difficulties with concentration," sadness, anxiety, and increased orthopedic pain due to poor sleep. He noted that the Veteran reported losing five weeks of work the prior year, attributed to back pain and doctors' appointments, as well as depression and irritability. He noted that the Veteran was not interested in advancing to a supervisory role, but had otherwise maintained the same employment since separation from service. The examiner diagnosed mild PTSD and alcohol abuse in remission. He assigned a GAF of 65. He stated that the prognosis was good, and found that the Veteran's symptoms were transient or mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran continued to receive VA treatment for his psychiatric disability. A depression screening performed in October 2009 (available in Virtual VA) indicated mild depression. On assessment in January 2010, it was noted that he had started on medication because his depression and anxiety were "much worse," with decreased energy, concentration, and appetite, chronic insomnia, isolation, and increased irritability. He reported nightly nightmares, avoiding crowds, and exaggerated startle reflex. He denied suicidal ideation. Appearance was adequate and his behavior was calm, cooperative, and appropriate, with good eye contact. Speech was normal, and mood was euthymic. Affect was congruent. He denied hallucinations, and his thought process was linear, logical, and goal directed. On psychiatric assessment in February 2010, he reported that his anxiety, irritability, and impatience, although problematic, were improving due to the medication. His sleep had also improved. Appearance and behavior were appropriate, speech was within normal limits, mood was mildly anxious, and thought processes/content were goal-directed and linear without hallucinations. Memory/cognition was intact, and there was no suicidal ideation. Insight and judgment were good. The Veteran reported that his anxiety and irritability had worsened recently, associated with his discovery and subsequent reporting of illegal activity at his workplace. He stated that his job security might be in question, that there were insinuations against him, and that "[h]e feels he needs to be careful in his interactions with others at work and cannot be too relaxed" due to his discussions with state officials. A GAF of 65 was assigned. On assessment in March 2010, the Veteran reported that he was doing much better, even awaking one night due to laughter, instead of a nightmare. He stated that work was going well. He reported improved sleep of 7 hours a night, waking rested, with slightly decreased appetite. Affect was "neutral to mildly elevated, but in no way hypomanic or manic." Mood was described as "better." He was neatly dressed and well-groomed, pleasant and cooperative, talkative and mild mannered. He denied hallucinations and suicidal or homicidal ideation. He was given a current GAF of 61 to 70. April 2010 findings were similar, with the Veteran reporting a complaint that he "still [has] anxiety and nervousness and sometimes a flare-up". A GAF range of 61-70 was again assigned. At his May 2010 appointment, the Veteran reported that he had no complaints and that "[o]verall, he has found himself more comfortable in general." He pointed out that even though he had waited an hour for his appointment, he was still calm. The treatment provider noted that the Veteran appeared much more relaxed. In June 2010, he again reported that he had no specific complaints. He reported that he got along well with his wife and that he "has friends with whom he gets along well without any change in relationship." He noted some irritability, worry, tension, and fearfulness, but related such feelings to changes at work, including longer hours and possible retaliation for whistle-blower activity. He noted a decrease in memory and concentration, but denied "obsessions, compulsions, phobias, rituals, or checking behavior." He avoided crowds and was startled by loud noises, but noted that he is around such noises regularly at work and has learned to tolerate them. He denied specific flashbacks, intrusive memories, or other avoidance behavior. He felt that his depression symptoms had improved. The treatment provider noted that he was now aware of the extent of the Veteran's workplace stressor and that "given his actions in the face of potential wrongdoing, this might provoke anxiety in anyone." The treatment provider noted that the Veteran "feels he is doing much better at this time" and continued the previous GAF. In July 2010, the Veteran reported no complaints and stated that "[i]t seems like that medication's worked really well, on the paranoia and anxiety, and I don't have a short fuse any more." He again seemed more relaxed than on prior visits and described his mood as "good." Other findings were consistent with prior evaluations. His previous GAF was continued. In October 2010, the Veteran again reported no complaints and stated that his work situation had improved. Other findings were consistent with prior evaluations, and his previous GAF was continued. In December 2010 the Veteran reported that he was "a whole lot better than [he] was"; findings were otherwise consistent with prior evaluations. In February 2011, he reported that he was less edgy and less paranoid than he had been, and denied any acute life stressors. He described occasional episodic depression that resolves in one to two days. Cognition appeared to be intact with no obvious defects. He was assigned a GAF of 62. More recent treatment records in Virtual VA reflect consistent findings of improvement. Of significance: in April 2011, he was again given a GAF range of 61-70 and reported continued improved mood, despite expanded whistle-blower activities. In August 2011 he reported improved (but not 100%) concentration and his medication dosage was reduced; his GAF was 70. In October 2011, a PTSD screen was positive and a depression screen was negative. He increased his medication dosage slightly (still reduced from the initial prescribed dosage) due to increased irritability after an incident on vacation, and his GAF was again 70. Follow-up visits in February and April 2012 were consistent with prior visits and the GAF of 70 was continued. The Veteran testified at a Travel Board hearing in July 2012. He stated that he takes daily medication that "puts [him] on an even keel" to control his psychiatric symptoms. He is alone most of the time at work, and does not feel that he could handle a job where he wasn't alone most of the day. He described having more confrontations with contractors at work than he should, but stated that "it's better now, because I've worked on it more and I've got the medication, than it was back in '09 and 2010. Back then it was not good." He stated that he has "gotten good" at controlling his anger. He described infrequent anxiety attacks: the most recent one was two weeks prior, and the last one prior to that was during his October 2011 vacation. He stated that his memory was not good as it used to be, and that he had lost friends as a result. He feels that he is less social than he was prior to developing PTSD. He prefers to engage in solitary hobbies of hunting and fishing, but also participates in International Defensive Pistol Association matches. Analysis Throughout the period on appeal, the Veteran's GAF scores have been between 61 and 70, indicating mild symptomatology. He has maintained the same (full time) employment, and remains happily married. He reports infrequent anxiety attacks and transient depression. He regularly participates in personal activities that, while they are solitary, he enjoys. He maintains a couple close friendships. Since March 2010, he has consistently reported improved mood and restful sleep, and his decreased irritability and anxiety has been well documented in VA treatment records. The Board acknowledges that the Veteran expressed increased symptomatology, including increased irritability and anxiety, sleep disturbances, missed work (due partly to orthopedic disabilities), and memory and concentration impairment during a portion of the period on appeal, specifically during 2009 and 2010, which was reflected in the VA examinations and VA treatment records. However, the April 2009 VA examiner nonetheless concluded that, after examining the Veteran and reviewing the record, such symptoms were transient or mild and decreased his work efficiency and ability to perform occupational tasks only during periods of significant stress, consistent with a 10 percent disability rating. The examiner did not endorse occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, which, if present, would warrant a 30 percent disability rating. The December 2008 examiner likewise endorsed mild impairment, assigning a GAF of 65. Furthermore, the Boards notes that during that time period in question, the Veteran reported increased stress at work due to his report of possibly illegal activities but that said symptoms subsided with the use of medication. His treatment provider concurred that it was reasonable that his increased work stress had exacerbated his psychiatric symptoms. Otherwise mild and transient symptoms that affect work efficiency and occupational functioning during a period of increased stress, such as that described by the Veteran as associated with his whistle-blower activity, are consistent with the currently assigned 10 percent disability rating. While the Veteran describes on-going forgetfulness, one representative symptom under the 30 percent criteria, the Board finds that evaluation of his disability picture as a whole reflects mild and transient symptomatology. See Mauerhan, supra. For example, although VA examiners noted mildly impaired recent memory and normal remote and immediate memory; however, both examiners felt that the Veteran overall presented with mild symptomatology. In sum, the Board finds that the preponderance of the evidence is against an increased schedular rating for PTSD with depression. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b); Gilbert, supra. The Board has also considered whether the disability picture presented by the Veteran's PTSD is such that referral for extraschedular consideration under 38 C.F.R. § 3.321 is indicated. There is no objective evidence, or allegation, that scheduler criteria are inadequate. The symptoms are fully encompassed by the scheduler criteria. Furthermore, nothing in the record suggests that the disability picture presented by the claimed disability is exceptional. Consequently, referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, as the Veteran has not alleged, nor is there anything in the record to indicate, that he is unemployed because of his PTSD, the matter of entitlement to a total disability individual unemployability rating is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to a rating in excess of 10 percent for PTSD is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs