Citation Nr: 1343502 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 09-15 233A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) prior to May 9, 2013. 2. Entitlement to a rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) beginning May 9, 2013. 3. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, Spouse and Son ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION 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 Veteran appellant had active service in the United States Navy from May 1951 to March 1957. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. The Veteran testified at a Board hearing at the RO in September 2011; the transcript of that hearing is included in the evidence of record. The Veteran's Law Judge who conducted the hearing is no longer employed by the Board. In November 2012, the Veteran was informed of this fact and that he could request another Board hearing. In December 2012, the Veteran indicated that he did not want another Board hearing. In a decision issued in November 2011, the Board denied an evaluation in excess of 30 percent for the psychiatric disability (posttraumatic stress disorder (PTSD)), as well as an increased evaluation in excess of 20 percent for a cervical spine disability. The Veteran appealed the November 2011 Board decision as to the PTSD claim to the United States Court of Appeals for Veterans Claims (Court). The Court issued a July 2012 order granting a Joint Motion for Remand. The Board thereafter remanded the case for additional development in March 2013. The case has now been returned to the Board for appellate review. While the case was in appellate status, the appellant's disability evaluation for his PTSD was increased from 30 percent to 50 percent, effective from May 9, 2013; this created a staged rating for PTSD. However, it is presumed that the appellant was seeking the maximum benefit allowed by law and regulation for that disability, and "it follows that such a claim remains in controversy where less than the maximum available benefit is awarded." AB v. Brown, 6 Vet. App. 35, 38 (1993). Because neither of the two assigned evaluations at issue represents the maximum rating available for PTSD, the appellant's increased rating claims have remained in appellate status. Therefore, the issues on appeal are as listed on the title page. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case must take into consideration the existence of this electronic record. The issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine disability is addressed in the REMAND portion of the decision below and the matter is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. Throughout the appeal period, the appellant's psychiatric disability has been manifested by hypervigilance, social isolation, neglect of his personal appearance, intrusive memories, anxiety, panic attacks, difficulty sleeping, depression, irritability, angry outbursts, difficulty with memory and concentration, episodic incidents of rage, difficulty in adapting to stressful circumstances (including work or a worklike setting) and an inability to establish and maintain effective relationships. 2. Throughout the appeal period, the appellant's psychiatric disability is not shown to have caused him to experience 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; or any other symptoms of equivalent nature and gravity. 3. The disability picture caused by the appellant's PTSD disability is not so unusual as to render the application of the regular schedular rating provisions impractical. 4. The appellant last worked in 2004; he has one year of college education and experience as an analyst, as a real estate agent and as a boat salesman. 5. As of August 13, 2007, the appellant's service-connected disabilities consisted of PTSD (70 percent rating), cervical spine (20 percent rating), tinnitus (10 percent rating) and hearing loss (zero percent rating); these disabilities were of such nature and severity as to prevent him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for an evaluation of 70 percent, but not more, have been met for the appellant's PTSD since August 13, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.126, 4.130 Diagnostic Code 9411 (2013). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for a total rating based on individual unemployability due to service connected disabilities (TDIU) were met as of August 13, 2007. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA's duty to notify and assist claimants in substantiating their claims for VA benefits is codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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) (2009). This notice must be provided prior to an initial 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). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or a Supplemental Statement of the Case (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant with a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the notice requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In August 2007, prior to the promulgation of the February 2008 rating action, VA sent the appellant a letter informing him of the types of evidence needed to substantiate his PTSD claim and its duty to assist him in substantiating his increased rating claim. The letter informed him that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, records from other Federal agencies, etc. He was advised, under 38 C.F.R. § 3.159(b)(1), that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. The Board finds that the information provided to the appellant complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the February 2008 rating decision, a July 2008 RO letter, the May 2009 SOC and the March 2010, March 2011, June 2013, and July 2013 SSOCs explained the bases for the RO's action, and provided him with opportunities to submit more evidence. All relevant evidence identified by the appellant relative to his increased-rating claim has been obtained and associated with the claims file, and neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. In addition, the July 2013 SSOC readjudicated the increased rating issue on appeal after the appellant and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). It is therefore the Board's conclusion that the appellant has been provided with every opportunity to submit evidence and argument in support of his PTSD increased rating claim on appeal, and to respond to VA notices. Furthermore, to whatever extent the decision of the United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the appellant in proceeding with the present decision. An August 2007 letter to the Veteran from VA contained the information required by Dingess. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). The appellant's VA medical treatment records (maintained in the Virtual VA paperless claims processing system) have been associated with the claims file. The appellant was afforded VA mental health examinations in December 2007, February 2010, and May 2013. A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). These examinations were conducted by medical professionals, and the associated reports reflect review of the appellant's prior medical history. The examinations included a report of the symptoms for PTSD and demonstrated objective evaluations. The examiners were able to assess and record the appellant's mental health status and how his capacity for employment was affected by his PTSD. The Board finds that the December 2007, February 2010, and May 2013 examination reports were each sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings. In addition, it is not shown that any one of these three examinations was in any way incorrectly conducted. It is not shown that any VA mental health examiner failed to address the clinical significance of the appellant's psychiatric disability. Further, each VA examination report addressed the applicable rating criteria. As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. § 3.326; 38 C.F.R. § 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991). Therefore, the Board concludes that the appellant was afforded adequate examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A remand from the Board or from the United States Court of Appeals for Veterans Claims (Court) confers upon a veteran the right to substantial, but not strict, compliance with that order. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this case, pursuant to the March 2013 Board remand, the appellant was scheduled for a VA a mental health examination in May 2013. In addition, additional medical records were gathered and associated with the claims file. Therefore, substantial compliance has been achieved. The appellant was duly afforded the opportunity to produce additional evidence to support his claim. Thus, the Board determines that the evidentiary record is adequate. In view of the foregoing, the Board finds that all notification and development actions needed to render a decision on the appellant's claim for an increased rating for his PTSD have been accomplished. Turning to the appellant's other claim, the Board is granting in full the benefits sought on appeal (a total rating based on individual unemployability due to service connected disabilities (TDIU). Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. II. The Merits of the Claims The appellant contends that he is entitled to a higher disability rating for his service-connected psychiatric disability. He also contends that he is unable to work due to his service-connected PTSD. The appellant testified at his September 2011 Board hearing that he suffered from anxiety on a daily basis and that he experienced panic attacks where everything closed in and he felt he had to get out. His wife stated that the appellant would lock himself up in the bedroom and that he would not been seen for hours and hours. She also said that the appellant would act very strange. The appellant further testified that he did not want people to be around him, that he woke up from bad dreams and that some days he was unable to focus. He said that he last worked in 2004, that he was unable to get along with the public and that he did not get along too well with his boss. He stated that he had worked as a real estate salesman and that he had one year of college. The appellant also reported that his primary reason for being unable to work was because he could not get along with others in that he would trigger off verbally at them and get very abusive. The appellant's son testified that the appellant was very short-tempered and that he had lost interest in everything. A. Evidence of record The evidence of record includes VA treatment records dated between 2003 and 2012. A November 2007 mental health note states that the appellant appeared anxious and his speech was rapid in rate. The appellant did not exhibit sensory distortions and he denied auditory and visual hallucination. He also denied homicidal and suicidal ideations. The appellant reported constant tension with his wife. He complained of feelings of anxiety, episodic incidents of rage and of being overwhelmed by intense emotions. The appellant said that his anger had gotten him banned from one store and that he had had a similar incident in another store. A January 2008 note stated that the appellant interacted in a rushed and talkative manner. He was alert and oriented times four. The appellant's mood was described as depressed with anxious affect. The appellant said that he found life to be very depressing. An April 2008 note indicates that the appellant reported limited interest and a tendency to avoid interpersonal interactions. He complained of significant irritability and reported that he had to be stopped from getting ready to hit his 13-year-old son. He was noted to have rapid speech. Another note written later that same month stated that the appellant was having panic attacks weekly. The mental health care provider stated that the appellant's anxiety symptoms were seriously interfering with his ability to concentrate and that the appellant was unable to work (unemployable). In December 2008, the appellant complained of continued sleep problems and increased irritability with more frequent episodes of losing his temper. He reported having confronted a friend with intense vehemence effectively ending the relationship. He was noted to have difficulty disengaging from frustrating situations. A February 2010 nursing note indicated that the appellant was depressed and that he had been having multiple panic attacks. In May 2010, the appellant complained of having more anxiety, more intrusive thoughts, more depression and more irritability. A March 2010 psychology note states that the appellant's symptoms included depression, occasional panic attacks, problems with concentration and having few friends. A December 2010 note indicates that the appellant reported having more panic attacks. An August 2011 note stated that the appellant felt hopeless about his future. The evidence of record includes a number of third party statements. In various written statements, the appellant's spouse indicated that the appellant would sometimes be very sloppy about his appearance, that the appellant had changed in many ways such as he was not interested in anything any more and he did not go fishing the way he used to do, that he experienced flashbacks and that he had sold boats for a couple of months but could not deal with the public. During the course of the appeal, the appellant underwent VA mental health examinations in December 2007, February 2010, and May 2013; each examiner reviewed the appellant's electronic claims file and medical records. The appellant's symptoms included hypervigilance, exaggerated startle response, social isolation, intrusive memories, anxiety, panic attacks, difficulty sleeping, depression, irritability, angry outbursts, difficulty with memory and concentration, episodic incidents of rage. The December 2007 examiner stated that, since the last examination, the appellant's functional status and quality of life had declined. (The report of the July 2006 VA psychiatric examination stated that the appellant's symptoms were moderate.) The examiner also related the decline in functioning and quality of life to the PTSD. The February 2010 examiner stated that the symptoms of the appellant's PTSD and panic disorder were predominantly overlapping in nature and that both conditions are anxiety-related disorders. The examiner further stated that there had been no change in functioning since the prior examination. The May 2013 examiner noted that the appellant reported getting angry often and sometimes to the point of feeling irrational. The examiner concluded that the appellant's ability to respond to coworkers, supervisors and the general public was moderately to markedly impaired. The examiner also concluded that the appellant's ability to respond appropriately to changes in the work setting was markedly impaired. B. Rating for PTSD In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The law provides that disability evaluations are determined by the application of a schedule of ratings that is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether they were raised by the appellant or not, as well as the entire history of the Veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In the evaluation of service-connected disabilities, the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. In this case the evidence reviewed includes the reports of the VA PTSD examinations conducted in December 2007, February 2010, and May 2013; the reports of VA treatment dated between 2003 and 2012; the September 2011 Board hearing testimony; and various written statements submitted by the appellant, his representative and various third parties. While a 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). A decision of the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See also Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two disability 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. Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, supra, at 1336 (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Ratings are assigned according to the manifestation of particular symptoms. However, 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). Further, in determining the appropriate disability rating, the Board must consider whether the case should be referred for extra-schedular consideration pursuant to 38 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The current regulations state that, under the General Rating Formula for Mental Disorders, a 30 percent evaluation will be assigned for 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 rating is assigned for 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 rating is assigned for 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. A 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, will be rated as 100 percent disabling. Under 38 C.F.R. § 4.130, the nomenclature employed in this portion of the rating schedule is based upon the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition, of the American Psychiatric Association (DSM-IV). As indicated in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995), the GAF is a scale reflecting the psychological, social and occupational functioning on a hypothetical continuum of mental health - illness, and a 51-60 rating indicates moderate difficulty in social, occupational or school functioning. The DSM-IV describes a GAF score of 51 to 60 as reflecting a moderate level of impairment, e.g., flattened affect, circumstantial speech, occasional panic attacks, or moderate difficulty in social, occupational or school functioning, e.g., having few friends or having conflicts with peers or co-workers. See 38 C.F.R. § 4.130. See also Cathell v. Brown, 8 Vet. App. 539 (1996); and Richard v. Brown, 9 Vet. App. 266, 267 (1996), wherein the Court stated that a "GAF of 50 is defined as '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).'" Between December 2007 and May 2013, the appellant's GAF score ranged from 52 to 69, with widely different scores being assigned by VA examiners versus the appellant's treatment mental health professionals. In this case, there is no dispute that Veteran is competent to report his PTSD symptoms because he has personal knowledge as it comes to him through his senses. See Layno v. Brown, supra, at 470. In any case, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See Jandreau v. Nicholson, supra, at 1377 n.4 ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. Here, the Board finds that the Veteran's reported history of continued extensive, frequent and severe PTSD symptoms is competent and credible. As reflected in letters and testimony from the appellant's relatives, the appellant neglected his personal appearance, had serious problems with anger management and irritability, as well as problems with getting along with others and engaging in activities with others. Based on the level of depression and anxiety shown, as well as reports of panic attacks, neglect of personal hygiene, problems with concentrations and communication and problems with anger, the Board finds that an evaluation of 70 percent is warranted from the date of the claim. This is consistent with the symptoms described in the clinical evidence of record and in the lay evidence of record. At worst, the medical and lay evidence supports serious symptoms, consistent with a 70 percent rating. However, a rating in excess of 70 percent is not warranted. Specifically, the Veteran is not shown to have gross impairment in his thought process, insight or judgment. Rather, the evidence shows that his thoughts are logical and no hallucinations have been noted throughout the period on appeal. Further, the evidence does not show grossly inappropriate behavior, an inability to perform daily activities, danger of hurting self or others, or an inability to maintain activities of daily living. The evidence reported above reflects that the appellant has exhibited some PTSD symptoms that are enumerated among the criteria of both the 50 percent and 70 percent ratings. While further medical inquiry could be conducted with a view towards resolution of this question, it is doubtful that such research would assist the Board in its inquiry. See e.g., Mittleider v. West, 11 Vet. App. 181, 182 (1998) (Observing that when it is not possible to separate the effects of a service-connected condition and a non-service-connected condition, the provisions of 38 C.F.R. § 3.102 mandates that reasonable doubt on any issue was to be resolved in the veteran's favor, and that all signs and symptoms be attributed to the service-connected condition). Affording the Veteran the benefit of the doubt on the question of the severity of the disability under consideration, the Board finds that there is enough evidence to support a schedular evaluation of 70 percent for the appellant's PTSD. The medical evidence shows that the appellant's PTSD symptomatology was severe enough to result in social isolation, anxiety, depressed mood, chronic sleep impairment, neglect of personal appearance, impairment of concentration and memory loss, difficulty controlling mood/irritability and difficulties with interpersonal relationships inside and outside the home. Furthermore, the appellant's PTSD symptoms have resulted in a continuing need for medication. These PTSD symptoms more closely approximate the criteria for a 70 percent evaluation. However, the appellant is not entitled to an evaluation in excess of a 70 percent. The evidence of record does not indicate that he experiences 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. The objective findings of the appellant's VA outpatient mental health treatment and the reports of his VA examinations contain no evidence that the appellant's symptoms are so incapacitating as to border on gross repudiation of reality. In each instance, the appellant has been found to be oriented and capable of expressing himself in a coherent and fairly logical manner and, despite some significant psychiatric symptoms, the appellant's speech, behavior and manner were essentially appropriate much of the time. The clinical assessments of record are considered persuasive as to the appellant's degree of impairment due to his PTSD since August 2007 because they consider the overall industrial impairment due to that service-connected disability. In addition, based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate. The Board has not found any variation in the appellant's symptomatology or clinical findings that would warrant the assignment of any staged ratings in this case. Therefore, the Board finds that a 70 percent rating, but no more, is warranted effective August 13, 2007. Notwithstanding the above discussion, a rating in excess of the assigned schedular evaluations for the appellant's service-connected disabilities may be granted when it is demonstrated that the particular disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Therefore, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, supra. The Board has considered the provisions of 38 C.F.R. § 3.321(b)(1) but finds no evidence that the Veteran's PTSD has caused marked interference with employment beyond that contemplated by the schedule for rating disabilities. His psychiatric symptomatology has not rendered impractical the application of the regular schedular standards in this case. Specifically, the evidence does not demonstrate any period of psychiatric hospitalization or the need for any extensive treatment other than regular and routine medication and counseling. Between 2007 and 2013, the Veteran was never hospitalized for any psychiatric treatment. Further, there is no indication in the record that the average industrial impairment from the PTSD would be in excess of that contemplated by the assigned rating. Even with complaints of sleep deprivation from nightmares, angry outbursts, irritability, lack of motivation, inability to form or maintain relationships, social isolation and occasional panic attacks, the Veteran has demonstrated the ability to generally keep track of health care appointments and medications; to manage his VA appeal; to participate in the care of his son; and to attend church on occasion. Accepting that the appellant experiences serious occupational impairment, there is no indication in the record that the average industrial impairment from his PTSD would be in excess of that contemplated by the assigned rating on appeal. The Court has held that, "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Thun, 22 Vet. App. at 15. Therefore, the evidence does not show that the appellant's PTSD presents such an unusual or exceptional disability picture as to require referral for an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b). See Floyd v. Brown, 8 Vet. App. 88, 96 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996) (when evaluating an increased rating claim, it is well established that the Board may affirm an RO's conclusion that a claim does not meet the criteria for submission for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1), or may reach such a conclusion on its own). B. TDIU claim VA will grant a total disability rating for individual unemployability (TDIU) when the evidence shows that a veteran is precluded, by reason of his service-connected disability or disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating may be assigned, where the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the appellant has been granted service connection for PTSD, a cervical disability, bilateral hearing loss and tinnitus. The appellant's disability evaluation for the PTSD has been rated as 70 percent disabling since August 13, 2007, and the combined rating since that date is 80 percent. Therefore, the aforementioned TDIU requirement of at least one disability rated 40 percent or more and additional disability to bring the combined rating to 70 percent or more has been met at throughout the appeal period. The only question remaining is whether there is evidence that the Veteran is unable to secure and maintain substantially gainful occupation as the result of his service-connected disabilities. The appellant has not worked during the appellate period. There is medical evidence and lay evidence of record to indicate that the appellant's capacity for individual employability has been compromised by his service-connected PTSD. There is also medical evidence, namely the three VA examination reports of record, that the appellant is capable of employment. The appellant has presented statements that he is incapable of working due to his service-connected PTSD. There is a VA medical statement of record dating back to 2008 that state that the appellant was unable to work and was unemployable as a result of his PTSD. There is also evidence of record that the appellant has been banned from at least one commercial establishment in his community due to his angry outbursts. In this case, further inquiry could certainly be undertaken with a view towards development of the TDIU claim. However, as noted above, the reasonable-doubt rule operates in favor of the claimant when the positive and negative evidence is in approximate balance. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Here, the Board is of the opinion that this point has been attained. Therefore, based on the totality of the evidence of record, and giving the benefit of the doubt to the appellant, the Board finds that evidence for and against the appellant's TDIU claim is at least in approximate balance on the question of whether the appellant is precluded from work by the synergistic effect of the service-connected cervical spine disability, hearing loss, tinnitus and PTSD in that they have adversely affected his ability to move his head, his ability to hear, his ability to handle stress, his ability to deal with others and his ability to handle change in the work setting. As such, the various manifestations of the Veteran's service-connected disabilities identified by the VA examiners and VA health care personnel support the Board's conclusion that the appellant is unemployable due to his service-connected disabilities. Thus, entitlement to a total evaluation based on individual unemployability due to service-connected disability has been established as of August 13, 2007. ORDER A70 percent evaluation, but no more, for PTSD is granted, effective August 13, 2007, subject to the laws and regulations for the payment of benefits. A total disability rating for individual unemployability due to service-connected disability is granted as of August 13, 2007, subject to the law and regulations governing the award of monetary benefits. REMAND The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded the case in September 2010. The September 2010 Board Remand directives stated that the AMC/RO was to: issue a statement of the case for the issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine disability. Only if the Veteran perfects an appeal should a claim be certified to the Board and any necessary development should be conducted. While the case was in remand status, the RO issued SSOCs, in June and July of 2013, that addressed the issue of new and material evidence for the lumbar spine service connection claim. However, no SOC as to that issue was promulgated as directed by the Board remand. Furthermore, the issuance of the June 2013 Supplemental Statement of the Case was in violation of 38 C.F.R. § 19.31. Pursuant to 38 C.F.R. § 19.31(a), a supplemental statement of the case may not be used to announce a decision by the Agency of Original Jurisdiction (AOJ) on an issue not previously addressed in a Statement of the Case (SOC), or to respond to a notice of disagreement on a newly appealed issue that was not addressed in an SOC. "In no case will a supplemental statement of the case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the statement of the case.") Therefore, the case must, unfortunately, again be remanded so that an SOC on the new and material evidence claim can be generated in order to put the issue in the correct procedural posture. If, and only if, the Veteran perfects an appeal should any necessary development should be conducted and followed by certification to the Board. Therefore, to ensure full compliance with due process requirements, this case is REMANDED for the following: (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. Re-examine the appellant's claim relating to the new and material evidence issue for the lumbar spine service connection claim. If no additional development is required, prepare an SOC as to the August 2010 determination that no new and material evidence had been submitted as to that issue, unless the matter is resolved by granting the benefits sought, or by the appellant's withdrawal of the NOD. 2. If, and only if, the appellant files a timely Substantive Appeal, return the application to reopen the claim for entitlement to service connection for a lumbar spine disorder to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. 2013). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs