Citation Nr: 1343397 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 11-12 008A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 for an incisional hernia, claimed as the result of abdominal aortic aneurism surgery performed at a VA medical facility in October 2007. 2. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with secondary depression and history of anxiety reaction, prior to July 2, 2013. 3. Entitlement to a rating in excess of 50 percent for PTSD with secondary depression and history of anxiety reaction, from July 2, 2013. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.M. Clark, Counsel INTRODUCTION The Veteran served on active duty from August 1942 to August 1945. These matters come before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. An informal conference was conducted with a Decision Review Office (DRO) in March 2011. The Veteran subsequently testified before the undersigned Veterans Law Judge in November 2013. A copy of the transcript is of record. At his BVA hearing, the Veteran submitted additional evidence with waiver of RO consideration. With respect to the Veteran's § 1151 claim the Board notes that the Veteran filed an untimely substantive appeal. Nevertheless, the claim was certified to the Board in a September 2013 VA Form 8 and testimony regarding the issue was obtained at his November 2013 Board hearing. As the VA has led the Veteran to believe the claim has been perfected and is in appellate status, the Board will adjudicate it below. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding VA waives objection to timeliness of substantive appeal by taking actions that lead the Veteran to believe that an appeal was perfected). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. The preponderance of the evidence does not show that an incisional hernia, that resulted from an abdominal aortic aneurism surgery performed at a VA medical facility in October 2007, was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical or surgical treatment; or an event not reasonably foreseeable. 2. Prior to July 2, 2013, the Veteran's PTSD with secondary depression and history of anxiety reaction was productive of reduced reliability and productivity with "difficulty" in establishing and maintaining effective work and social relationships. 3. Throughout the entire period on appeal, the Veteran's PTSD with secondary depression and history of anxiety reaction has been productive of not more than reduced reliability and productivity with "difficulty" in establishing and maintaining effective work and social relationships. CONCLUSIONS OF LAW 1. Entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 for an incisional hernia, claimed as the result of abdominal aortic aneurism surgery performed at a VA medical facility in October 2007 have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2013). 2. Prior to July 2, 2013, the criteria for a rating of 50 percent, but no higher, for PTSD with secondary depression and history of anxiety reaction were met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.21, 4.126, 4.130, Diagnostic Codes (DCs) 9400-9411 (2013). 3. Since July 2, 2013, the criteria for a rating in excess of 50 percent for PTSD with secondary depression and history of anxiety reaction have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.21, 4.126, 4.130, DCs 9400-9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify Before addressing the merits of the Veteran's § 1151 claim and increased rating claims, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. With respect to the Veteran's § 1151 claim and increased rating claims, the Veteran was sent a letter in November 2009 that addressed all notice elements and was issued prior to the initial RO decision in these matters. The letter provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Thus, no further development is required with respect to the duty to notify. Next, 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 and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained the Veteran's service treatment records and VA treatment records. The Veteran also submitted personal statements and testimony in support of his appeal. No other outstanding evidence has been identified that has not been obtained. The Board notes that a VA treatment record in the Veteran's Virtual VA (VVA) claims file reflects that the Veteran is in receipt of Social Security Administration (SSA) benefits. See November 2011 VVA record. Significantly, the Veteran has not indicated that there are any SSA records that would be pertinent to his claims. In Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010), the United States Court of Appeals for Veterans Claims (Court) noted that 38 U.S.C.A. § 5103A did not require VA to obtain all medical records or all SSA disability records, only those that are relevant to the Veteran's claim. The Court also stated that VA was not required to obtain records in every case in order to rule out their relevance. Rather, the standard is: as long as a reasonable possibility exists that the records are relevant to the veteran's claim, VA is required to assist the veteran in obtaining the identified records. In this instance, the Veteran himself did not identify any SSA records that would be relevant to his claims. The Board, therefore, concludes that the record does not establish a reasonable possibility that there are such records that are relevant to this claim, and further development is not warranted. Discussion of the Veteran's November 2013 Veterans Law Judge (VLJ) hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. His § 1151 and increased rating claims for PTSD were identified as issues at the hearing. Sources of evidence relevant in this regard were identified during this process. No additional outstanding records were identified. The Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Next, VA examinations and opinions were obtained in January 2010 (§ 1151) and November 2009, July 2010, and July 2013 (PTSD) with respect to his claims. The examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and together provided the information necessary to adjudicate his § 1151 claim and to rate his psychiatric disability under the applicable rating criteria. The Veteran's most recent psychiatric examination is now several months old. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's PTSD with secondary depression and history of anxiety reaction since the July 2013 VA examination. The Veteran does not contend otherwise. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion concerning the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2013). The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. 1151 The Veteran asserts that his incisional hernia was caused by abdominal aortic aneurism surgery performed at a VA medical facility in October 2007. He seeks compensation under the provisions of 38 U.S.C.A. § 1151. The Veteran has argued that he suffers from additional injury due to the VA waiting too long before doing the aortic aneurism surgery and that the VA did not advise him of the risks or complications of the aortic aneurism surgery. See BVA Hearing Transcript (T.) at 5. When a veteran suffers injury or aggravation of an injury as a result of VA hospitalization or medical or surgical treatment, not the result of the veteran's own willful misconduct or failure to follow instructions, and the injury or aggravation results in additional disability or death, then compensation, including disability, death, or dependency and indemnity compensation, shall be awarded the same manner as if the additional disability or death were service connected. 38 U.S.C.A. § 1151 (West 2002). A disability is a qualifying disability if it was not the result of the veteran's willful misconduct, the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the VA, and the proximate cause of the disability or death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or was an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a) (West 2002). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability or death. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish causation. 38 C.F.R. § 3.361(c)(1) (2013). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2) (2013). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1) (2013). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2) (2013). VA treatment records show that on October 11, 2007 the Veteran underwent an abdominal aortic aneurysm repair. The record shows that he had been counseled as to possible risks associated with the procedure pre-operatively. Records reflect that the Veteran's aneurysm was successfully repaired. However, it is noted that the Veteran now has an incisional hernia that is the result of the surgery he had on October 11, 2007 to repair his abdominal aortic aneurysm. See January 2010 VA examination report. However, although an additional disability has been shown to be causally related to the Veteran's October 2007 surgery, to establish entitlement to compensation benefits under 38 U.S.C.A. § 1151 it must be shown that the treatment causing the additional disability involved carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault or was not reasonably foreseeable. The January 2010 VA examiner opined that it was not likely that the Veteran's additional disability, his hernia, resulted from carelessness, negligence, lack of skill, or similar incidents of fault on the part of the attending VA personnel. She noted that the Veteran had signed a release and permission for his surgery and an incisional hernia is a known complication after the surgery. The VA examiner stated that the incisional hernia is not likely because of failure on the part of the VA to timely diagnose and/or properly treat the claimed disease or disability. She noted that as previously stated, an incisional hernia is a known complication from surgery. The VA examiner stated that unfortunately hernias can occur after surgery, and there is no way to predict whether a person will have this complication or not from surgery. The Board considers the January 2010 VA examination and opinion, indicating that the Veteran's incisional hernia was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, to be the most probative and persuasive evidence of record. That opinion was based on a thorough review of the Veteran's claim folder and supported by detailed rationale. Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). Moreover, that VA opinion is consistent with the Veteran's VA pre-operative, operative and post-operative medical records, and VA treatment records. Those medical records are devoid of any subjective or objective findings of substandard outpatient or surgical care. There are no contrary competent medical opinions of record. After a careful review of the record, the Board finds that the pertinent evidence, in particular the January 2010 VA opinion, which the Board deems highly probative, shows that there was no additional disability that was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance on VA's part in furnishing medical treatment with respect to the Veteran's October 2007 surgery. Nor does that evidence show that VA has failed to exercise the degree of care that would be expected of a reasonable health care provider at any time. On the contrary, that evidence shows that the October 2007 procedures and subsequent complications, while regrettable, were not the fault of VA and VA healthcare providers who failed to comply with the proper standard of care. Moreover, the evidence further shows that the Veteran had been informed of the risks inherent in the VA surgical procedures administered and he had undergone the procedures only after providing his express consent. The October 2007 informed consent form noted that the following had been discussed with the Veteran in lay terms (a) the procedure or treatment (b) if the treatment was novel or unorthodox (c) the use of sedation was discussed with the Veteran if planned (d) the indications, risks, benefits, and alternative treatment options were explained, including: (1) the option of no treatment or procedure; and (2) potential emergency responses to known complications that the patient may wish to forgo and (e) the Veteran was offered an opportunity to ask questions. In addition, the January 2010 VA examiner opined that the evidence does not show that there was an event not reasonably foreseeable in the Veteran's disability picture. As noted above, she determined that an incisional hernia is a known complication after surgery. The Board has considered an internet article submitted by the Veteran on incisional hernias. The Court has held that a medical article or treatise can provide support to a claim, but that it must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships. Sacks v. West, 11 Vet. App. 314, 316-17 (1998); see Wallin v. West, 11 Vet. App. 509, 514 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus); see also Mattern v. West, 12 Vet. App. 222, 228 (1999). The article of record does not discuss the specific circumstances of the Veteran's incisional hernia in any manner, let alone whether VA personnel were deficient in any way in their treatment of the Veteran. In addition, this article has never been commented on in any form by a medical professional. As such, this article is not competent to show that the Veteran experiences additional disability related to an incisional hernia as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel or that it was due to an event not reasonably foreseeable in furnishing the Veteran's VA medical treatment. The Board is sympathetic to the Veteran's contentions that VA has been careless and negligent with regard to the care provided in relation to the October 2007 surgical procedure and subsequent complications. As a layperson, the Veteran is capable of observing symptoms related to his incisional hernia and the Board ultimately finds statements from the Veteran in this regard to be competent. See Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009). Nevertheless, these statements are not competent evidence sufficient to establish that he experiences additional disability related to an incisional hernia as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel or that it was due to an event not reasonably foreseeable in furnishing the Veteran's VA medical treatment. In some cases, lay evidence may be competent and probative evidence of etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson, 581 F.3d at 1315 (finding that, in certain circumstances, lay evidence may be competent to establish a medical etiology). However, medical causation in this case involves questions beyond the range of common experience and common knowledge and requires the special knowledge and experience of a trained physician. The cause of an incisional hernia cannot be made by the Veteran as a lay person based on mere personal observation, i.e., perceived by visual observation or by any other of the senses. An incisional hernia disability is not a simple disorder that the Veteran or other lay persons are competent to identify. Therefore, the Veteran's assertions are not competent evidence to establish that he experiences additional disability related to an incisional hernia disorder as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel or that it was due to an event not reasonably foreseeable in furnishing the Veteran's VA medical treatment. 38 C.F.R. § 3.159(a)(1) (2013) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). In sum, the Board finds that the weight of the competent evidence demonstrates that that the Veteran's October 2007 surgery which resulted in an incisional hernia, was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical or surgical treatment. Nor was the additional incisional hernia disability shown to be the result of any event not reasonably foreseeable. Therefore, compensation for benefits under 38 U.S.C.A. § 1151 is not warranted. Accordingly the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to VA disability compensation under 38 U.S.C.A. § 1151 for an incisional hernia disability, and that claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). 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 veteran. 38 C.F.R. § 4.3 (2013). The Veteran's service-connected PTSD with secondary depression and history of anxiety reaction has been evaluated under Diagnostic Codes (DCs) 9400-9411 and is rated at 30 percent prior to July 2, 2013, and rated 50 percent since. See July 2013 Decision Review Officer Decision. Thus, the Board will consider both whether the Veteran is entitled to a rating in excess of 50 percent, and whether he is entitled to a rating in excess of 30 percent prior to July 2, 2013. PTSD is evaluated under the general rating formula for mental disorders. See 38 C.F.R. § 4.130, DC 9411. Under this general rating formula, a 30 percent evaluation is warranted where the evidence demonstrates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational asks (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). In order to be entitled to the next-higher 50 percent rating under DC 9411, the evidence must show 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 effective work and social relationships. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (rating criteria provide mere guidance as to the severity of symptoms contemplated for each rating; they are not all-encompassing or an exhaustive list). At a November 2009 VA examination it was noted that the Veteran's thought process was normal and he denied hallucinations or delusions. His affect was dysphoric and his mood was moderately depressed. He denied a history of homicidal ideation or psychotic symptoms, and was oriented to person, place, time and purpose. The Veteran reported fluctuations in mood from day to day. It was noted that he feels predominantly depressed, irritable and anxious. He admitted to suffering from a history of suicidal ideation but he has no plan to act on these episodic thoughts. At a March 2010 VA treatment visit the Veteran adamantly denied suicidal ideation. It was noted that his thoughts were fairly well organized, although occasionally circumstantially digressive. The Veteran was subsequently evaluated at a July 2010 VA examination. The Veteran reported that he had been married five times in his life and that his current relationship with his wife was generally going well, although he does not feel close to her. He reported that he did not have any friends and typically has not had many friends since his military service. The VA examiner noted that the Veteran had last worked at approximately the age of 57 years of age. It was noted that a prior treatment record had referenced that the Veteran had assaulted a coworker who slapped a ruler on a table. The Veteran reported no suicidal ideation or intent, although he stated that he has passive thoughts of death. A mental status examination reflected that the Veteran was oriented to person, place, and time. His thoughts were described as logical and goal directed. It was noted that his affect was constricted and his mood was neutral until the end of the session when he showed depressive feelings. The VA examiner noted that the Veteran's symptoms were moderate. He indicated that the Veteran had few friends and multiple marriages, showing a moderate social impairment from PTSD. He noted that the Veteran had generally done well at work, although he was physically aggressive on one occasion. In a letter received in April 2011, from the Veteran's VA treating psychiatrist, it was noted that the Veteran had been treated for PTSD and a severe anxiety disorder. He noted that the Veteran experiences daily symptoms of hypervigilance, exaggerated startle reactions, flashbacks, avoidance and poor sleep. The VA treating psychiatrist indicated that these symptoms are distressing, frightening, and negatively impact the Veteran's social interaction with family and friends and limit his ability to experience pleasure. He opined that the Veteran is severely disabled due to PTSD. Here, the Board finds that the evidence listed above is most consistent with a 50 percent disability rating, reflecting difficulty in establishing and maintaining effective work and social relationships, and disturbances of mood and motivation. Accordingly, a 50 percent evaluation is warranted for the period prior to July 2, 2013. Having determined that the Veteran is entitled to a 50 percent rating prior to July 2, 2013, the Board will consider whether he is entitled to a higher evaluation for the entire time on appeal under the criteria for evaluating mental disorders under 38 C.F.R. § 4.130 (2013). In order to be assigned the next-higher 70 percent rating, the evidence must show that the Veteran's 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, DC 9411. Nevertheless, while the Veteran has "difficulty" in establishing and maintaining effective work and social relationships, the evidence fails to show that he suffered from occupational and social impairment with deficiencies in most areas so as to warrant a 70 percent rating or total occupational and social impairment so as to warrant a 100 percent rating. The overall weight of the evidence of record does not demonstrate suicidal ideation. For example, at the Veteran's November 2009 VA examination although he admitted to suffering from a history of suicidal ideation he indicated that he had no plan to act on these episodic thoughts. A December 2009 VA treatment record noted no suicidal, homicidal or assaultive ideation. The Veteran reported at his July 2010 VA examination that he had no suicidal ideation or intent, although he stated that he has passive thoughts of death. Next, while the evidence demonstrates that the Veteran is hypervigilant, the evidence of record does not reflect that the Veteran experienced obsessional rituals. The evidence also fails to show that his speech was intermittently illogic, obscure, or irrelevant. Next, the objective evidence of record also fails to demonstrate near-continuous panic attacks or depression which affect his ability to function independently. While the evidence shows anxiety and depression, the weight of evidence does not support a determination that they affect his ability to function independently. For example, the November 2009 VA examiner noted that the Veteran was casually dressed and that it appeared that the Veteran was capable of managing his financial affairs. A March 2010 VA treatment visit note reflected that the Veteran was dressed casually, but neatly, and had good attention for appearance and hygiene. The July 2010 VA examiner noted that the Veteran was able to dress himself and complete his own personal hygiene. He stated that the Veteran was not doing any housework due to his hernia, and being more limited physically. The VA examiner indicated that the Veteran was able to drive, and manage his own money. This evidence does not support a rating in excess of 50 percent. Further, even though the evidence of record additionally discussed his problems relating to others and social isolation, he does not appear to have impaired impulse control, during the period on appeal. A March 2010 VA treatment record noted that the Veteran's judgment and insight appeared grossly intact. The July 2010 VA examiner indicated that the Veteran's thoughts were logical and goal directed and there were no signs of major psychopathology, such as hallucinations, delusions, or preoccupations. The evidence of record also does not demonstrate any spatial disorientation. As previously discussed, the evidence reveals that he has difficulty in maintaining effective relationships. Nevertheless, the evidence demonstrates that the Veteran has a fairly good relationship with his one biological daughter. See November 2009 VA examination report. The July 2010 VA examiner noted that the Veteran has had few friends, and multiple marriages and demonstrates a moderate social impairment from PTSD. At the Veteran's July 2013 VA examination it was noted that he has phone contact with his younger sister. These findings are consistent with a 50 percent rating ("difficulty" in establishing and maintaining effective relationships) but not a 70 percent rating (an "inability" to establish and maintain effective relationships). The July 2013 VA examiner indicated that the Veteran displays symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood as a result of his service-connected psychiatric disorder. He noted that the Veteran's PTSD was most consistent with "occupational and social impairment with reduced reliability and productivity." The Board notes that this falls under a 50 percent disability rating. In concluding that a disability rating in excess of 50 percent is not warranted the Board has also considered the Veteran's Global Assessment of Functioning (GAF) score assigned in his various VA outpatient treatment records and at his VA examinations. GAF is 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 Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM IV)). At his November 2009 VA examination he was assigned a GAF score of 65; at his July 2010 VA examination he was assigned a GAF score of 58. A GAF score range of 50-53 was assigned at his July 2013 VA examination. Therefore, the GAF scores referable to the Veteran's PTSD range essentially from 50 to 65. In this regard, GAF scores of 41 to 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). 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). A GAF of 61 to 70 is defined as 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 relationships. Despite the seriousness of the symptoms associated with the low GAF scores ranging from 41-50, a higher disability rating is not justified on this basis. Specifically, the objective evidence does not actually indicate symptoms commensurate with his lowest assigned GAF score of 50. There is no persuasive evidence of significant suicidal ideation, severe obsessional rituals, or frequent shoplifting. While the Board notes that the July 2013 VA examiner indicated that the Veteran was no longer working, it was noted that the Veteran had reported a "good working career." Also the VA examiner characterized the Veteran's PTSD as resulting in "occupational and social impairment with reduced reliability and productivity" he did not assess the Veteran's PTSD to result in findings consistent with a higher disability rating. Additionally, while the Veteran has limited relationships, he does remain married and has some relationship with his sister. Based on this evidence, the Board determines that a GAF score of 50 is not probative as to the Veteran's actual disability picture here. Based on an evaluation of all the evidence of record, and irrespective of whether the individual criteria for a 70 or 100 percent evaluation have been met, the Board finds that the Veteran's PTSD signs and symptoms are consistent with 'difficulty' in establishing and maintaining effective relationships, but not an 'inability' to do so. The manifestations of his service-connected disability are best approximated by a 50 percent rating. See Mauerhan, 16 Vet. App. at 436. The Board has also considered the statements of the Veteran that his disability is worse. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms of his PTSD because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of this disorder-according to the appropriate diagnostic codes. Such competent evidence-concerning the nature and extent of the Veteran's PTSD -has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. Based on the evidence, the Board finds that a rating in excess of 50 percent is not warranted for the Veteran's service-connected PTSD. The Board has also considered whether the Veteran is entitled to a referral for an extraschedular rating, which is a component of a claim for an increased rating under Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. The Board finds that neither the first nor second Thun element is satisfied here. The Veteran's service-connected PTSD with secondary depression and history of anxiety reaction is manifested by signs and symptoms such as reduced reliability and productivity with "difficulty" in establishing and maintaining effective work and social relationships. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to mental disorders provide disability ratings on the basis of occupational and social impairment. Given the variety of ways in which the rating schedule contemplates occupational and social impairment for mental disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, which is manifested by signs and symptoms such as reduced reliability and productivity with "difficulty" in establishing and maintaining effective work and social relationships. In short, there is nothing exceptional or unusual about the Veteran's PTSD with secondary depression and history of anxiety reaction because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's PTSD includes exceptional factors. Referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 for an incisional hernia, claimed as the result of abdominal aortic aneurism surgery performed at a VA medical facility in October 2007, is denied. A 50 percent rating, but no higher, for PTSD with secondary depression and history of anxiety reaction, prior to July 2, 2013, is granted, subject to the laws and regulations governing the award of monetary benefits. A rating in excess of 50 percent for PTSD with secondary depression and history of anxiety reaction, from July 2, 2013, is denied. REMAND TDIU- In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Veteran has indicated that his psychiatric disability negatively affected his ability to work. The Board finds that the issue of TDIU has been reasonably raised by the record and is, thus, properly before the Board by virtue of his increased-rating claim pursuant to Rice. However, the Veteran has not received notice pursuant to the VCAA as it pertains to his claim for TDIU. If, as here, the record has a procedural defect with respect to the notice required under the VCAA, this may not be cured by the Board. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Board therefore must remand the case to the agency of original jurisdiction because the record does not show that the Veteran was provided adequate notice under the VCAA and the Board is without authority to do so. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Review the claims file and ensure that all notification and development action required by the VCAA, to include a VA examination if deemed necessary, is completed. In particular, the RO should ensure that notification is provided regarding requirements and development procedures necessary to substantiate a claim for TDIU. 2. After completing the above, and any other development deemed necessary, adjudicate the issue currently on appeal (entitlement to a TDIU) with consideration of all applicable laws and regulations, to include whether the matter should be referred to the Director of the Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs