Citation Nr: 1339205 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 10-05 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) with alcohol dependency. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Joseph Moore, Attorney ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1972. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Newark, New Jersey, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was originally scheduled for a central office hearing on October 19, 2010. The record indicates that he withdrew his hearing request on October 20, 2010. See 38 C.F.R. § 20.704(e) (2013). In a July 2011 decision (implemented by a July 2012 rating decision), the Board increased the initial rating assigned for the PTSD to 70 percent disabling. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (the Court). Pursuant to a Joint Motion for Partial Remand, a February 2012 Order of the Court remanded the portion of the Board's decision that denied entitlement to an initial evaluation in excess of 70 percent for PTSD and dismissed the remaining issue in order to not disturb the portion of the Board's decision that increased the Veteran's initial disability rating to 70 percent for PTSD. The case is now returned to the Board. The issues were remanded in September 2012 for further development. The Veteran waived his right to remand his claim of entitlement to a schedular rating over 70 percent for PTSD for the issuance of an SSOC with consideration of any newly submitted evidence. (See September 2013 Submission of Evidence and Appellant's Brief). A review of the Veteran's electronic ("Virtual VA") paperless claims file does not reflect additional treatment records. Virtual VA is a highly secured electronic repository used to store and review every document involved in the claims process. FINDINGS OF FACT 1. With resolution of the "benefit of the doubt" in the Veteran's favor, the service-connected PTSD renders him incapable of employment. 2. The Veteran's PTSD is not shown to be productive of total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for the establishment of a total disability evaluation based on individual unemployability are approximated. 38 U.S.C.A. §§ 1155 , 5107(b) (West 2002); 38 C.F.R. §§ 3.340 , 3.341, 4.16(a)(b) (2013). 2. The criteria for an initial rating in excess of 70 percent for PTSD have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim has been satisfied under the VCAA. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claims arise from an appeal of the initial evaluation following the grant of service connection for PTSD. 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). Therefore, no further notice is needed under VCAA. VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished, and therefore appellate review may proceed without prejudice. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Veteran through counsel advised that a grant of TDIU or a 100 percent rating for PTSD would fully satisfy the increased rating claims on appeal. (See September 2013 Submission of Evidence and Appellant's Brief). Because the full benefits sought on appeal are being granted by this Board decision, no further notice or assistance to the Veteran is required. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with these issues because of the favorable nature of the Board's decision. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). TDIU The Veteran is in receipt of a 70 percent disability evaluation for PTSD, and the record reflects he is unemployable as a result of this disability. TDIU is granted where a Veteran's service connected disabilities are rated less than total, but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2013). Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim for TDIU will be granted on this basis. 38 U.S.C.A. § 5107(b) (West 2002); Alemany v. Brown, 9 Vet.App. 518 (1996); Brown v. Brown, 5 Vet.App. 413 (1993) (under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). After submission of his March 2007 claim for PTSD, evidence shows that the Veteran's employment with his long-term employer ended on March 31, 2011. Treatment records from the Secaucus Vet Center dated in 2010 documented the Veteran reports of engaging in isolative behaviors to deal with extra pressures, and would "go off into [his] own world" while at work. (See March and September 2010 treatment records). In March 2010, the VA Counselor noted that the stress of the uncertainty of the Veteran's job situation intensified his PTSD symptoms. The Veteran ceased full-time employment in March 2011 when he was terminated from his 26 year career at HVAC mechanic due to his PTSD symptoms. (See VA Form 21-8940). The Veteran essentially asserts that he is unable to work in any environment that is not accommodating because he can only function in isolation in light of his PTSD symptoms, consistent with the April 2013 VA examiner's assigned GAF score of 48 and the August 28, 2009 Vet Center Mental Health Evaluation Report. The Veteran's private opinion from a psychiatrist rendered in September 2013 stated that the Veteran showed: ...[A]ll classic signs and symptoms of PTSD including a high potential for violence, becoming overwhelmed at the most mundane tasks and events, and the inability to maintain even his most simple and unthreatening relationships let alone establish new ones. [The Veteran] has been completely disabled since at least March 2011 and has gotten significantly worse since that time. He is no longer functioning socially, and it has been over two years since he has functioned on a job site. He is 100% disabled. The Veteran's VA provider stated that "[i]n his professional opinion [The Veteran's] symptoms of PTSD have and continued to create great dysfunction in all areas of his life. His chronic severe PTSD has impaired his social, personal, and occupational functioning." (See July 16, 2013 VA treatment record). The law in this matter does not require a certainty of unemployment due to service-connected disorders, only that the evidence approximates balance. With resolution of any factual doubt in his favor, his reports of his mental and social functioning have been essentially consistent since the submission of his claim and it appears that the Veteran would not be able to sustain regular employment due to his service-connected PTSD. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet.App. 52 (1993); see also Massey v. Brown, 7 Vet.App. 204 (1994). Given these factors, a TDIU is granted. PTSD The Veteran is rated 70 percent disabling for PTSD, effective March 12, 2007 under Diagnostic Code 9411 of the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 (2013). Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R, Part 4. The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. See Fenderson v. West, 12 Vet App 119 (1999). Therefore, in matters concerning an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. See Fenderson, 12 Vet. App. 125-26. The Court since has extended this practice even to cases that do not involve initial ratings, so also established ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 38 C.F.R. § 4.7. Diagnostic Code 9411, which is governed by the general rating formula for mental disorders set forth in 38 C.F.R. § 4.130, provides the following levels of disability: A 70 percent disability rating for PTSD is warranted when the Veteran exhibits 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); inability to establish and maintain effective relationships. Id. A 100 percent disability rating for PTSD is warranted when the Veteran exhibits total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.), p. 32]. GAF scores ranging from 61 to 70 reflect 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. GAF scores ranging from 51 to 60 reflect 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). Scores ranging from 41 to 50 reflect 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). Scores ranging from 31 to 40 reflect some impairment in reality testing or communications (e.g. speech is at times illogical, obscure, or irrelevant) or 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).Id. The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R § 4.6. GAF scores are one relevant component of the Veteran's disability picture that must considered. However, they must be weighed alongside all additional relevant evidence. See, e.g., Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others). The October 2008 initial Biophysical Assessment from the Secaucus Vet Center notes a history of night sweats, sleep disturbances, an increasingly short temper, and general anxiety. The Veteran was neat and well-kempt. His was friendly and cooperative and appeared to be of average intelligence. He was oriented times three. His memory function appeared normal. His affect was appropriate. He appeared tense at times, but overall his motor activity presented as relaxed. His judgment appeared to be good. He became tearful when recounting a mistake during combat whereby he was incorrectly informed that his father had died. He denied any suicidal or homicidal ideation, intention, or plan. He appeared to be clinically stable. During the course of his treatment at the Vet Center from October 2008 to February 2009, the Veteran reported symptoms of intrusive thoughts, nightmares, anger management issues, anxiety in crowds, isolative behaviors at work, hypervigilance, social anxiety, and isolative tendencies in general. In June 2009, the Veteran underwent a VA examination in conjunction with this claim. At that time, he complained of flashbacks, vivid memories of war experiences, fitful sleep, dissociative reactions at night, difficulty sleeping, nightmares, use of alcohol to combat insomnia, hypervigilance, nightmares, isolation, social avoidance, mood swings, irritability, and frequent loss of concentration and impaired memory at work during periods of anxiety. He arrived early for his examination, appropriately dressed and groomed. On objective examination, the Veteran was alert and cooperative and his motor activity was calm. He was oriented to time, place, and person. His affect was appropriate to the content of the material discussed. The examiner noted that, when confronted with the fact that he isolated himself from his immediate family, the Veteran began to weep. His speech was normal. He demonstrated no evidence of perceptual impairment or thought disorder. Thought content was appropriate to the interview. The Veteran denied suicidal and homicidal ideation. His memory and concentration were intact for the interview. Abstract reasoning, judgment, and impulse control were intact. Insight was moderately impaired. He was not aware of the extent that he was isolating and avoiding his family or how his mood and irritability impacted his wife and daughter. While a Veteran's rating on the Global Assessment of Functioning (GAF) scale is not dispositive, the Board notes that he was assigned a Global Assessment of Functioning (GAF) score of 47, which 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). See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). The examiner reasoned that this GAF score was appropriate because the Veteran isolates from his family and has few friends. He avoids his family and avoids making close emotional contact. He has heighted arousal and impaired sleep. He avoids recreational and leisure activities. He uses alcohol habitually to deal with his heightened stress, his arousal, and his impaired sleep. The Veteran was able to maintain employment but only in an isolated capacity. This examiner found the Veteran deficient in most social areas with occupational impairment including reduced reliability and productivity due to his symptoms. Vet Center treatment records from February 2009 to December 2009 show that the Veteran participated in regular individual treatment to diminish his symptoms. These records reveal occasional flare-ups of symptoms, such as anxiety, when hid normal routine was disturbed. Vet Center treatment records from December 2009 to September 2010 reflect complaints of increasing symptoms, such as anxiety, depression, angry outbursts, dissociative behaviors, hypervigilance, and irritability. The Veteran reported that his company was considering laying him off and this stressor overwhelmed him, increasing the intensity and frequency of his PTSD symptoms. He continued to deny suicidal or homicidal ideations. In August 2010, the Veteran sustained another stressor when his wife suffered a stroke. The Veteran reported symptoms of sleep disturbance, nightmares, intrusive symptoms, depression, anxiety, anger, angry outbursts, avoidant behaviors, and a need to isolate. VA treatment records from March 2010 include a mental status examination, which found the Veteran's speech clear, coherent, and goal-directed, without evidence of tangentiality or loose associations. His mood was anxious. His affect was full range and appropriate. He denied suicidal or homicidal ideation or intent. He denied the presence of any psychotic symptoms, including auditory or visual hallucinations, paranoid ideation or ideas of reference. His insight and judgment were good. The Veteran's subjective complaints included insomnia, anxiety, and severe emotional distress. He was assigned a GAF score of 55, which represents 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 coworkers). VA treatment records from May 2010 include another mental status examination. At that time, the Veteran was casually groomed and dressed. He made fair eye contact. He was alert and oriented to time, place, and person. He was cooperative on approach. His speech was normal in rate, rhythm, and volume. His mood was "okay" and his affect was anxious. He denied suicidal and homicidal ideation, paranoia, auditory and visual hallucination, and other unusual perceptual experiences. His thought pattern was linear. His insight and judgment were adequate. A December 2010 letter from the Veteran's employer states that his employment would end in March 2011 and explained his eligibility for a separation "package." VA treatment records from June 2010 to June 2013 reflect treatment for PTSD. In April 2013, a VA examiner opined that the Veteran's PTSD would not preclude employment. He assigned a GAF score of 48. The Veteran's symptoms consisted of loss of motivation, heightened anxiety, and increased isolation. He concluded that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. His explanation for his conclusions consisted of the Veteran having maintained a long-term relationship with his wife, daughter, and two brothers. The Veteran's symptoms consisted of: suspiciousness, chronic sleep impairment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The Veteran's private opinion from a psychiatrist rendered in September 2013 stated that the Veteran showed: ...[A]ll classic signs and symptoms of PTSD including a high potential for violence, becoming overwhelmed at the most mundane tasks and events, and the inability to maintain even his most simple and unthreatening relationships let alone establish new ones. [The Veteran] has been completely disabled since at least March 2011 and has gotten significantly worse since that time. He is no longer functioning socially, and it has been over two years since he has functioned on a job site. He is 100% disabled. The Veteran's July 2013 VA provider stated that "[i]n his professional opinion [The Veteran's] symptoms of PTSD have and continued to create great dysfunction in all areas of his life. His chronic severe PTSD has impaired his social, personal, and occupational functioning." (See July 16, 2013 VA treatment record). The Veteran's wife stated that it has become increasingly difficult to live with the Veteran (i.e., like waiting for a bomb to go off) and that their home life has become tense. (See August 2013 Written Statement from Wife). An assignment of the next-higher 100 percent evaluation is not warranted. The Veteran has consistently been appropriately groomed and fully oriented. He has denied suicidal and homicidal ideations, hallucinations, and delusions throughout the course of this appeal period. There is no indication on the record that his thought process is impaired requiring inpatient psychiatric care. The Veteran has been described as having gross thought impairment; impaired impulse control; inability to handle stress; obsessive thought focused on worriment; inability to concentrate; difficult time dealing with everyday circumstances and quoted as stating "I can't think straight, I can't remember anything, I want to go off on all these people"-do not rise to the level of total impairment socially and occupationally. These symptoms prevent him from working, but they do not reach the level of those manifestations for the 100 percent schedular evaluation, which require, in part, total social impairment. (See January 2011; February 2012 Vet Center Progress Notes; July 2012 Vet Center Progress Note; March 2013 Vet Center Progress Note, and August 2013 Statement from wife). The Veteran is competent to report the symptoms associated with his PTSD, and the Board finds that the Veteran's assertions with regard to the level of his psychiatric disability are credible. However, in determining the actual degree of disability, the medical evidence prepared by a skilled neutral professional is more probative evidence and thus the examination findings are more probative of the degree of mental impairment. As the preponderance of the evidence is against the claim for a higher rating, the "benefit-of- the-doubt" rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). No additional staged ratings are warranted. The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b)(2013). In exceptional cases an extra-schedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, however, the schedular rating criteria contemplate the extent and severity of the Veteran's symptoms, which primarily consist of anxiety, depression, sleep impairment, alcohol abuse, anger outbursts, suspiciousness, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The Board, then, is not obligated to refer this claim to the Under Secretary for Benefits or to the Director of Compensation and Pension (C&P) Service for extra-schedular consideration. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER Entitlement to TDIU is granted, subject to the applicable regulatory provisions governing payment of monetary awards. An initial evaluation in excess of 70 percent for PTSD with alcohol dependency is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs