Citation Nr: 1316322	
Decision Date: 05/17/13    Archive Date: 05/29/13

DOCKET NO.  05-06 154	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to an increased initial rating for hepatitis C, currently rated as 10 percent disabling.  

2.  Entitlement to an increased initial rating for posttraumatic stress disorder (PTSD), currently rated as 30 percent disabling prior to May 5, 2010, and as 50 percent disabling since May 5, 2010.  

3.  Entitlement to a total disability rating based on individual unemployability (TDIU).  

4.  Entitlement to an effective date earlier than December 31, 2002 for the grant of service connection for PTSD.  


REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Jennifer Hwa, Counsel


INTRODUCTION

The Veteran served on active duty from August 1967 to August 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied service connection for PTSD and granted service connection for hepatitis C and assigned a 10 percent rating, effective December 31, 2002.  

In January 2006, the Veteran testified at a travel board hearing.  A transcript of the hearing has been associated with the claims file.  

In a November 2006 decision, the Board denied service connection for PTSD and continued the initial 10 percent rating for hepatitis C.  The Veteran appealed the November 2006 Board decision to the United States Court of Appeals for Veterans Claims (Court).  Pursuant to a Joint Motion for Remand, in January 2008, the Court vacated the Board's decision, in part, and remanded the claims to the Board for further proceedings.

In March 2009, the Board granted the claim for service connection for PTSD and remanded the claim for an increased initial rating for hepatitis C for additional development.  Pursuant to the March 2009 Board decision, a July 2009 rating decision granted service connection for PTSD and assigned a 30 percent rating, effective June 4, 2008.  The Veteran disagreed with the assigned effective date for his grant of service connection for PTSD.  

A June 2011 rating decision granted an earlier effective date of December 31, 2002 for the 30 percent rating for PTSD.  The rating decision also increased the disability rating for PTSD, from 30 percent to 50 percent, effective May 5, 2010.  However, as this grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).  Additionally, as the grant of an earlier effective date does not represent a total grant of benefits sought on appeal (i.e. the day after the Veteran's separation from service), the claim for an earlier effective date also remains before the Board.  AB v. Brown, 6 Vet. App. 35.    

The Board notes that a claim for total disability based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, the issue of entitlement to a TDIU rating has been raised by the record.  Specifically, the Veteran contends he had stopped working as a delivery driver in 2002 due to hepatitis C symptoms.  Additionally, the Veteran has reported being fired from 4 to 5 jobs due to fighting and arguing with co-workers and bosses.  Therefore, the Veteran's claim for a TDIU is before the Board.  

The Board also notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims.  A review of the documents in such file reveals that certain documents, including VA medical records dated from September 2011 to September 2012, are potentially relevant to the issues on appeal.  These records were considered by the RO, and thus, the Board has also considered these electronic records in its adjudication of the Veteran's case.      



FINDINGS OF FACT

1.  The Veteran's hepatitis C is productive of subjective complaints of daily fatigue, malaise and anorexia without weight loss or hepatomegaly, but his disability does not require dietary restriction or continuous medication, nor is it productive of any incapacitating episodes as defined by VA regulation.    

2.  Prior to May 5, 2010, the Veteran's symptoms of PTSD were manifested by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, but not by total occupational and social impairment.  

3.  Since May 5, 2010, the Veteran's symptoms of PTSD have been manifested by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, but not by total occupational and social impairment.  

4.  Since December 31, 2002, the Veteran's service-connected PTSD, hepatitis C, and right foot fungal infection combine to an overall 70 percent rating.  

5.  The Veteran has work experience as a machine operator, mail handler, clerk, dispatcher, maker of electronics for harpoon missiles, and truck driver; he has one year of a junior college education and has completed training at schools for welding, pipe fitting, plumbing, painting, taping, and bedding.

6.  Since December 31, 2002, the weight of the competent and probative evidence indicates that the Veteran is prevented from obtaining and retaining substantially gainful employment as a result of his service-connected disabilities.






CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 10 percent for hepatitis C have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7354 (2012).
  
2.  The criteria for an initial schedular 70 percent rating, but no higher, for PTSD have been met prior to May 5, 2010.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012).

3.  The criteria for an initial schedular rating in excess of 70 percent for PTSD have not been met from May 5, 2010.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012).

4.  The criteria for a TDIU have been met since December 31, 2002.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Given the Board's favorable disposition to grant the claim for a TDIU since the effective date of service connection for his hepatitis C and PTSD, the Board finds that no discussion of VCAA compliance is necessary at this time for this issue.

Regarding the Veteran's claims for increased initial rating for hepatitis C and PTSD, the notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing.  38 C.F.R. § 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  See Pelegrini, 18 Vet. App. at 121.

In this case, in a February 2003 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.    

The appeal arises from the initial awards of service connection.  In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2012).  Thus, because the Veteran's claims of service connection were granted, and he was already assigned effective dates for his disabilities, VA's duty to notify in this case has been satisfied.  See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims").  

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA medical records, VA examination reports, Social Security Administration (SSA) records, lay statements, and hearing testimony.

The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  

During the hearing, the Veteran's representative asked questions directed at identifying whether the Veteran met the criteria for a grant of service connection and whether he had symptoms meeting the schedular criteria for a higher rating.  The VLJ also specifically sought to identify any pertinent evidence not currently associated with the claims.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  In fact, the Veteran's claim of service connection for PTSD was subsequently granted.    

Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims.  As such, the Board finds that no further action pursuant to Bryant is necessary.  

Additionally, the prior remand instructions were substantially complied with.  Instructions pertinent to the claims being decided included scheduling the Veteran for a current VA examination for his hepatitis C.  In response, the RO/AMC scheduled the Veteran for a November 2009 VA examination for his hepatitis C.  Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).  

As discussed above, the VCAA provisions have been considered and complied with.  The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran was an active participant in the claims process by providing evidence and argument and testifying at a hearing.  Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran.  Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Analysis

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).


Increased Rating

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 
38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made.  See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

1.  Hepatitis C

The Veteran is in receipt of a 10 percent rating for hepatitis C under Diagnostic Code 7354.  

Under Diagnostic Code 7354, a 10 percent rating is warranted for hepatitis C manifested by intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12- month period.  A 20 percent rating is warranted for hepatitis C manifested by daily fatigue, malaise, and anorexia, (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period.  A 40 percent rating is warranted for hepatitis C manifested by daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and upper right quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period.  A 60 percent rating is warranted for hepatitis C manifested by daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and upper right quadrant pain) having a total duration of at least six weeks, but not occurring constantly, during the past 12-month period.  A 100 percent rating is warranted for hepatitis C manifested by near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain).  38 C.F.R. § 4.114, Diagnostic Code 7354 (2012).

For purposes of evaluating conditions under Diagnostic Code 7354, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.  38 C.F.R. § 4.114, Diagnostic Code 7354, Note (2).

For the purposes of evaluating conditions in § 4.114, the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer.  "Baseline weight" means the average weight for the two-year-period preceding onset of the disease.  38 C.F.R. § 4.112 (2012).

In a January 2003 VA medical report, the Veteran reported occasional fatigue associated with his hepatitis C.  

On VA examination in April 2003, the Veteran denied having a liver biopsy or being treated with interferon for his hepatitis C.  He reported experiencing hematemesis and hematochezia, but denied any nausea, vomiting, and melena.  The Veteran stated that his weight had been recently stable.  He complained of experiencing sharp, right-sided abdominal pain once a week as well as fatigue and low energy.  Examination revealed that the Veteran weighed 215.5 pounds and was in no acute distress.  There were no signs of anemia or malnutrition, nor was there any clinical evidence of ascites.

An October 2003 VA medical report shows that the Veteran underwent a liver biopsy.  The results revealed chronic inflammatory infiltrate in the portal triads with early lymph follicle formation.  The biopsy report noted that these changes were consistent with chronic hepatitis C with moderate inflammatory activity and early fibrosis, but that there was no evidence of cirrhosis.  The Veteran complained of flu-like symptoms, such as an episode of vomiting, fatigue, and sleeping poorly.  He indicated that he was still able to eat.  He began receiving treatment with interferon.  

In a November 2003 VA treatment report, the Veteran continued to report having flu-like symptoms, such as joint pains, fever, chills, nausea, and vomiting.  He stated that since his last episode of vomiting 2 days ago, he had been able to eat. 

The Veteran's interferon treatment was shown to be discontinued in December 2003 because it had caused retinopathy.

In a May 2004 medical report, the Veteran complained of chronic fatigue.  

On VA examination in June 2004, the Veteran reported fatigue, loss of energy, variable appetite, and some digestive problems.  He indicated that his weight had fluctuated up and down from 205 to 235 pounds.  Examination revealed that the Veteran weighed 225 pounds with no signs of ascites.  The examiner noted that the Veteran had chronic active hepatitis C that was non-cirrhotic.  The Veteran's weight was found to be stable although he had lost 10 pounds since going into treatment.  

A February 2005 SSA decision found that the Veteran was disabled due to his hepatitis C, syncope of unknown etiology, interstitial fibrosis, hypertension, gastroesophageal reflux disease (GERD), and polysubstance abuse.  The Veteran's primary diagnosis was found to be hepatitis C while his secondary diagnosis was hypertension.  

At a July 2005 VA examination, the Veteran reported experiencing intermittent pain in the right upper quadrant, nausea, and vomiting.  He maintained that he had daily fatigue, malaise, and anorexia.  He stated that he had stable weight and that he only slept an average of 4 hours each night.  He complained that he would get the flu every 2 months and suffer from fever, sweating, muscle aches, headaches, nausea, and vomiting.  He also indicated that he was awaiting treatment with non-interferon medication.  The Veteran described his symptoms as being moderate in severity.  Examination revealed that the Veteran weighed 216 pounds.  The examiner found no evidence of malnutrition or ascites, and liver size was normal.  The Veteran's right upper quadrant was tender to palpation.  There were no extra-hepatic manifestations of liver disease.  

In a September 2005 VA medical report, the Veteran indicated that he had continuing problems with fatigue.  

The Veteran testified before the Board at a travel board hearing in January 2006.  Testimony revealed, in pertinent part, that the Veteran was having headaches, problems with eating, and regurgitation when attempting to drink liquids.  The Veteran testified that he was taking interferon for his hepatitis C and subsequently clarified that he had previously taken interferon but had been taken off of the medication because it had made him sick and caused him to have retinopathy.  He reported that he felt as if he had the flu all the time.  He stated that he had no energy and that he slept very little at night.  He also indicated that he had to eat a special diet because eating certain foods would make him sick.  He maintained that he would have to lie down and get bed rest every week because he would feel so sick.  The Veteran also testified that he experienced pain in his upper right extremities as well as the lower right side of his stomach.  He reported having constant headaches.  

On VA examination in November 2009, the Veteran complained of experiencing polyarticular arthralgias of the hands, wrists, and left shoulder for 6 years.  He reported having chronic fatigue for 6 or 7 years.  He stated that he had intermittent nausea that usually lasted 5 to 10 minutes and occurred 2 to 3 times per week.  He indicated that the nausea was relieved by vomiting or 1 to 2 days of fasting or drinking soups.  He denied vomiting any blood.  The Veteran reported that he had last worked in December 2002 but that he had quit his job because he had experienced episodes of "blanking out" on the job.  The examiner noted that the Veteran's esophagogastroduodenoscopy had not shown any esophageal varices.  Examination revealed that the Veteran's abdomen was soft, nontender, and without hepatosplenomegaly.  The Veteran had left and right shoulder tenderness with movement as well as left shoulder crepitus.  There was mild tenderness in his elbows.  The examiner diagnosed the Veteran with history of HCV viremia and 2003 liver biopsy with evidence of chronic hepatitis but no cirrhosis.  He noted that since 2006, the Veteran had had undetectable viral loads.  He indicated that the Veteran experienced chronic fatigue, intermittent nausea, and arthralgias, like many patients with HCV viremia, but that his HCV viremia had been found to be negative twice.  The Veteran's polyarticular arthralgias were noted to be most typically associated with HCV viremia.  

In a November 2009 VA rheumatology consultation for polyarthralgias, the Veteran reported having morning stiffness in the joints for 30 minutes to an hour.  He also complained of difficulty sleeping and fatigue.  He denied any notable joint swelling, antecedent trauma, difficulty climbing stairs, oral ulcer, alopecia, or fever.  The physician diagnosed the Veteran with hepatitis C-related polyarthralgias versus hepatitis C-related fibromyalgia.  

In a February 2010 VA medical report, the physician noted that the Veteran had underwent 6 weeks of interferon therapy in the past but that it had been stopped due to the medication causing retinopathy.  He found that the Veteran's hepatitis C appeared to have cleared with the short course of interferon therapy that he had undergone in the past.  

On VA examination in January 2012, the Veteran complained of feeling tired all the time, having worsening arthralgia, experiencing intermittent nausea and vomiting episodes twice a week, and having poor appetite.  He reported that his weight had been stable over the last 2 years at 230 pounds.  The examiner noted that the Veteran suffered from intermittent malaise, nausea, and vomiting, as well as near constant and debilitating fatigue and arthralgia.  Continuous medication was not required for control of the Veteran's liver condition.  The examiner found that in the past 12 months, the Veteran had experienced incapacitating episodes lasting at least 1 week but less than 2 weeks.  He had no signs or symptoms attributable to cirrhosis.  The Veteran was diagnosed with hepatitis C.  The examiner found that the hepatitis C impacted the Veteran's ability to work because he was constantly tired and felt pain all over his body.  The Veteran was noted to have quit working as a delivery driver in 2002 due to hepatitis C symptoms.  

In an August 2012 VA addendum opinion, the January 2012 VA examiner reviewed the Veteran's entire claims file.  She noted that the Veteran had been treated with anti-viral medications for only a short time period due to the side effect of retinopathy.  The Veteran's viral load was reported to have been negative since 2006.  His most recent blood test showed normal liver enzymes, and an ultrasonography (US) of the abdomen revealed a mild to moderate fatty liver that was most likely secondary to alcohol use.  The US did not show any cirrhotic changes in the liver.  The examiner also indicated that the Veteran's weight had been well-maintained over the years by being over 200 pounds with a current body mass index (BMI) of 26.9.  The Veteran was not on any dietary restrictions or any medications for anorexia, fatigue, or malaise due to hepatitis C.  

Although the Veteran had been diagnosed in November 2009 with hepatitis C-related polyarthralgias versus hepatitis C-related fibromyalgia, the examiner noted that his viral load was undetectable on laboratory test results.  She explained that in the absence of detectable hepatitis C viral load in the blood stream, the Veteran's subjective fatigue and malaise were of unknown etiology.  The examiner also acknowledged the Veteran's reported symptoms of near-constant debilitating fatigue, malaise, nausea, vomiting, and arthralgia due to hepatitis C, but she reiterated that in the absence of any detectable viral load or viremia since 2006 on repeated blood tests, the Veteran's hepatitis C was less likely the cause for his reported symptoms.  Regarding incapacitating episodes, the examiner noted that the Veteran had reported incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) due to hepatitis C in the past 12 months at least once, but less than twice, per week.  He indicated that the episodes had required self-recommended bed rest and not bed rest recommended by a physician.  Despite being prescribed medication for his arthralgia, he was not compliant with the medication because he did not like to take medications, and the medication was not working for him anyway.  The examiner also found no evidence of weight loss because the Veteran's weight had been persistently over 200 pounds for years.  She stated that his current weight was 221 pounds with a BMI of 26.9.  Additionally, the examiner determined that there was no evidence of hepatomegaly on examination or US report, as well as no evidence of malnutrition on examination.  Regarding the Veteran's reported hepatitis C symptoms, the examiner found that according to the gastrointestinal and ear, nose, and throat departments, the nausea and vomiting were due to the Veteran's GERD.  As for the Veteran's symptoms of fatigue, malaise, anorexia without any evidence of weight loss or malnutrition, arthralgia without any evidence of joint inflammation, moderate and intermittent right upper quadrant abdominal pain with normal US report and blood test reports, and negative hepatitis C viral load, the examiner indicated that these symptoms were of unknown etiology.  She noted that the Veteran had been discharged from the hepatology clinic in February 2010.  However, the examiner determined that given the positive hepatitis C status in the past, the Veteran could be afforded the benefit of the doubt that his symptoms were due to his hepatitis C.  She reported that his symptoms were mostly subjective, and there was no medical evidence to support those findings.  

With respect to the impact of the hepatitis C on employment, the examiner acknowledged the Veteran's complaints of constantly feeling tired and having pain all over his body.  She noted that he had quit working as a delivery truck driver in 2002 due to hepatitis C symptoms.  The Veteran did not currently have any visual symptoms from interferon retinopathy because his symptoms had resolved.  The examiner concluded that the Veteran's subjective symptoms of fatigue, malaise, anorexia, arthralgia, and intermittent right upper quadrant pain from hepatitis C in the past with undetectable viral load or objective medical evidence did not render him unable to maintain gainful physical or sedentary employment.   

Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that for all periods under consideration, the Veteran's hepatitis C is appropriately evaluated as 10 percent disabling.  

The evidence of record documents that the Veteran reports suffering from daily fatigue, malaise, and anorexia.  However, the evidence fails to show that the Veteran's fatigue, malaise, and anorexia required dietary restriction or continuous medication.  Indeed, the January 2012 VA examiner specifically determined in an August 2012 VA addendum opinion that the Veteran was not on any dietary restrictions or any medications for anorexia, fatigue, or malaise due to hepatitis C.  

Although the Veteran testified at his January 2006 hearing that he required a special diet because eating certain foods would make him sick, the August 2012 VA opinion indicated that the Veteran's nausea and vomiting were due to his GERD and not to his hepatitis C.  Regarding continuous medication, the evidence consistently shows that the Veteran only had interferon therapy for a 6 week period in 2003 before having to stop taking the medication due to interferon retinopathy.  At his January 2006 travel board hearing, the Veteran at first appeared to testify that he was currently receiving interferon treatments, but he subsequently clarified that he had been taken off the interferon medication because it had made him sick.  Moreover, the VA medical reports and examinations of record do not support the notion that the Veteran ever went back on interferon therapy after 2003.  The Veteran himself reported at a July 2005 VA examination that he was awaiting non-interferon medication.  A February 2010 VA medical report and the August 2012 VA addendum opinion both indicate that the Veteran had only received interferon treatment for a short period of time in the past.  The criteria under Diagnostic Code 7354 are conjunctive, not disjunctive; thus all criteria must be met.  See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met).  In this case, although the Veteran may have daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), he does not require dietary restriction or continuous medication for these symptoms.  

Moreover, there is no evidence of incapacitating episodes (requiring bedrest and treatment by a physician) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period.  The Veteran had reported at his January 2012 VA examination that he had experienced incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) due to hepatitis C in the past 12 months at least once, but less than twice, per week.  However, the VA examiner reported in an August 2012 addendum opinion that the Veteran had indicated that the incapacitating episodes had required self-recommended bed rest and not bed rest recommended by a physician.  As the Veteran's bed rest does not meet the definition of an incapacitating episode for VA rating purposes, an increased rating is not warranted based on incapacitating episodes.  See  38 C.F.R. § 4.114, Diagnostic Code 7354, Note (2).  

Thus, given the evidence outlined above, the Board finds that the Veteran's hepatitis C is not manifested by symptoms more closely approximating the rating criteria for a 20 percent disability rating.  Therefore, a disability rating in excess of 10 percent is not warranted in this instance.

2.  PTSD

The Veteran contends that he is entitled to a higher disability rating for his PTSD.  Such disability has been rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, as 30 percent disabling prior to May 5, 2010, and as 50 percent disabling since May 5, 2010.  

Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, a 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.  38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 

A 30 percent rating is warranted 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; and/or mild memory loss (such as forgetting names, directions, recent events).  Id.

A 50 percent rating is warranted 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; and/or difficulty in establishing and maintaining effective work and social relationships.  Id. 

A 70 percent rating is warranted 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 work-like setting); and/or inability to establish and maintain effective relationships.  Id. 

A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name.  Id. 

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 solely on the basis of social impairment.  38 C.F.R. § 4.126 (2012).  

One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness."  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)).  A GAF score of 71 to 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).  A GAF score of 61 to 70 indicates some mild symptomatology (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, with some meaningful interpersonal relationships.  Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores.  See 38 C.F.R. § 4.130 (2012).  

When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

A.  Prior to May 5, 2010

The medical and lay evidence dated from April 2003 to April 2010 shows that the Veteran is suffering from symptoms enumerated under Diagnostic Code 9411.  Throughout the period under consideration, the medical evidence shows that the Veteran experienced depressed mood, irritability, withdrawal and social isolation, crying spells, nightmares, flashbacks, avoidance, severe insomnia of sleeping only 1 to 2 hours a night, decreased energy and concentration, anxiety, anhedonia, occasional auditory hallucinations of voices in the garage, occasional visual hallucinations of flying bugs, and worrying about possible home invaders.  

At the Veteran's April 2003 and July 2005 VA examinations, the examiners found that the Veteran had good hygiene and grooming, and was alert and fully oriented.  The Veteran's speech was goal-directed and coherent.  However, the April 2003 VA examiner determined that the Veteran's impulse control was questionable, as the Veteran had a history of fighting, spousal violence, and criminal acts.  Indeed, the examiner noted that after discharge from service, the Veteran had been jailed several times for aggravated assault and forgery.  The Veteran was also found to have fairly significant problems with regard to fighting and compliance.    
 
The Veteran spoke of his symptoms during VA treatment sessions and examinations and statements to the Board.  On VA examination in April 2003, he indicated that he had few friends and that he would ruminate on distressing issues, such as people who had angered him or treated him unfairly.  He maintained that he had problems with anger control and that he had hit another man with a tool during an argument 3 weeks ago.  The Veteran also complained of having problems with both short and long term memory, as well as concentration.  He reported forgetting where he was going while driving, forgetting that he left food on the stove at home, forgetting his medication and medical appointments, and forgetting where he parked the car.  The Veteran reported being married in August 1972 and divorced in 1986.  He still lived with his ex-wife and admitted to past spousal abuse in the 1970s.  He indicated that he currently spent his time reading and watching television.  The Veteran reported that he had worked many jobs during the years following his service and that he had lost one or two of the jobs due to his anger problems.  He also indicated that he had prior drug use that was mostly responsible for his difficulties with staying at jobs or school.  

At a July 2005 VA examination, the Veteran reported that in 1974, he was charged with a conspiracy regarding checks while working at the post office.  He was charged with defrauding the government and spent 6 months in prison.  He also stated that he was incarcerated for 2 months after being charged with forgery of checks in the 1970s and 1980s.  He was also subsequently charged with smuggling illegal immigrants from Mexico in the 1980s and incarcerated for 9 months.  The Veteran reported that when he had been working, he would get into arguments with co-workers.  He complained of occasional mild irritability and being a loner with no friends.    

In a December 2008 VA treatment session, the Veteran reported that he lived with his ex-wife and that they did not talk to each other much.  He indicated that he was "ok with that."  

The Veteran's sister also submitted a January 2005 lay statement describing the Veteran's PTSD symptoms.  She reported that the Veteran had suffered from nightmares, memory loss, personality changes, and flashbacks.  She indicated that when the Veteran had flashbacks, he could not recognize or remember his family.  She also stated that the Veteran had lost many jobs over the years due to his personality changes and flashbacks, and that he had suffered black outs after many violent encounters with family and friends.  

The evidence reveals that during the period under consideration, the Veteran was assigned GAF scores ranging from 45 to 55.  Specifically, the Veteran was assigned a GAF score of 55 in July 2005, September 2006, and November 2006; a GAF score of 50 in April 2003, December 2005, June 2006, October 2008, November 2008, from January 2007 to November 2007, February 2009, April 2009, and April 2010; a GAF score of 49 in December 2008; and a GAF score of 45 in September 2008.  GAF scores of 45, 49, and 50 are indicative of serious symptoms or serious impairment in social, occupational, or school functioning.  A GAF score of 55 is indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning.  

The Board acknowledges that on a few occasions, the Veteran was assigned a GAF score of 55, which is indicative of only moderate symptoms or moderate impairment in social or occupational functioning.  However, VA regulations do not dictate that disability percentages are assigned based solely on GAF scores.  See 38 C.F.R. § 4.130.  

As the Veteran and his sister have offered statements that are consistent with one another and with the medical evidence of record, the Board finds them both to be competent and credible in describing the Veteran's symptoms.  Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran's PTSD has resulted in occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood.  See Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. Apr. 8, 2013).  Therefore, the Veteran's PTSD is appropriately evaluated as 70 percent disabling for the period under consideration.  

As outlined above, the evidence clearly shows that the Veteran's PTSD caused deficiencies at work.  The Veteran and his sister have both reported that the Veteran had lost jobs due to his anger problems.  Specifically, the Veteran's difficulty in adapting to stressful circumstances and impaired impulse control would cause him to get into arguments and fights with his co-workers.  Additionally, due to his impaired impulse control, the Veteran had reported having a prior drug use problem, which had also made it difficult for him to stay at his jobs.  The Veteran's impaired impulse control also affected his former job in 1974 at a post office, as he was charged with defrauding the government in a conspiracy regarding checks and sent to prison for 6 months.  The Veteran's difficulty in adapting to stressful circumstances and impaired impulse control thus resulted in work deficiencies.  

The Veteran's PTSD also caused him to exhibit deficiencies in family relations.  The Veteran had few friends and preferred to be alone.  The VA medical records confirm that the Veteran suffered from withdrawal and social isolation.  An April 2003 VA examination reveals that the Veteran had gotten married in August 1972 and divorced in 1986.  He had a noted history of past spousal abuse in the 1970s.  A December 2008 VA treatment record reveals that although the Veteran currently still lived with his ex-wife, they did not talk to each other very much, and he was "ok" with that situation.  Additionally, the Veteran's sister has reported that the Veteran had experienced many violent encounters with family and friends.  Thus, the Veteran's impaired impulse control and inability to establish and maintain effective relationships caused deficiencies in his family relations.    

The Veteran's impaired impulse control also led to deficiencies in judgment and thinking.  The April 2003 VA examiner determined that the Veteran had questionable impulse control, as the Veteran had a history of fighting, spousal violence, and criminal acts.  The Veteran was also found to have fairly significant problems with regard to fighting and compliance.  Indeed, the evidence indicates that the Veteran had been jailed several times for aggravated assault, forgery, and smuggling of illegal immigrants.  The Veteran also maintained that he had problems with anger control and that he had hit another man with a tool during an argument 3 weeks prior to his April 2003 VA examination.  He had also lost several jobs due to arguing and fighting with co-workers, and had a prior drug abuse problem.  The Veteran also indicated that he tended to ruminate on distressing issues, such as people who had angered him or treated him unfairly.  The Veteran's deficiencies in judgment and thinking were thus manifested by his impaired impulse control and irritability.  

Finally, the Veteran's PTSD caused the Veteran to have deficiencies in mood.  The evidence consistently shows that the Veteran suffered from depressed mood, irritability, occasional crying spells, anxiety, and anhedonia.  He had problems with anger control and tended to ruminate on distressing issues.  Thus, the Veteran's impaired impulse control and depression caused him to have mood deficiencies.   

The Board acknowledges that an August 2003 SSA assessment found that the Veteran's PTSD impairment was not severe, and that he only had mild restriction of daily activities, social impairment, and difficulties in concentration.  Additionally, the April 2003 VA examiner determined that the Veteran was currently not reporting significant impairment in occupational or social functioning due to his PTSD symptoms.  Although the Veteran believed that his symptoms were overall worsening, the examiner found that the Veteran's reported history suggested that he had been more symptomatic during the 1970s and 1980s when he was hospitalized, using drugs, having legal troubles, and losing various jobs.  However, despite these conclusions, as previously noted, the Veteran and his sister are both competent and credible to report on the Veteran's current PTSD symptoms, and their lay evidence was consistent with the findings in the VA treatment records.  Moreover, VA examination reports and treatment records from May 2010 list the Veteran's history from this period, including his associated PTSD symptoms.  Examiners have found that these symptoms represented severe PTSD and proceeded to indicate the impact that these symptoms had on the Veteran's social and occupational adaptability.  It was determined that the Veteran's PTSD symptoms resulted in occupational and social impairment with deficiencies in most areas such as work, family relations, judgment and mood.  In light of the foregoing, the Board finds that, for the period under consideration, the evidence is at least in relative equipoise on the question of whether the Veteran's PTSD had resulted in occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood.  When the evidence is in equipoise, reasonable doubt is resolved in favor of the Veteran.  Therefore, the Board finds that the symptomatology during this time period more nearly approximates the criteria for a higher 70 percent rating.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

B.  Since May 5, 2010

The medical and lay evidence dated from May 2010 to September 2012 shows that the Veteran is suffering from symptoms enumerated under Diagnostic Code 9411.  Throughout the period under consideration, the medical evidence shows that the Veteran experienced memory problems, severe depression, sadness, anhedonia, poor sleep, fatigue, poor concentration, irritability, feeling on edge, nightmares, flashbacks, crowd avoidance, social/emotional isolation and withdrawal, hypervigilance, preoccupation or worry that animals could be in his yard, blunted/flat affect, anxiety, poor judgment, paranoid delusional thoughts, and disordered perceptions of auditory and visual hallucinations.     

At the Veteran's May 2010 and January 2012 VA examinations, the examiners found that the Veteran was clean, neatly groomed, and fully oriented.  The Veteran's speech was clear and coherent, and his thought processes were linear and appropriate.

However, the May 2010 examiner found that the Veteran appeared to be struggling with a very severe level of PTSD, based on the Veteran's report, presentation, records, and history.  His history was filled with numerous legal incidents resulting in imprisonment, severe substance abuse problems, poor impulse control and judgment, violence, and distant and destroyed family relationships due to the PTSD symptoms.  The Veteran had also been fired from several jobs due to fighting and arguing.  He reported being depressed such that he had no friends and was not motivated to engage in once pleasurable activities.  He had even had multiple suicide attempts.  He stated that he had an ongoing feeling of being disgusted and getting mad over anything.  He was noted to have no friends, to avoid social connections, and to have no recreational activities.  The examiner determined that the Veteran did not have total occupational and social impairment due to PTSD, but she did find deficiencies in judgment, thinking, family relations, work, and mood.  

Specifically, with regards to judgment deficiencies, she cited the Veteran's arguing and fighting at work, prior drug and alcohol use, and legal problems that included forgery, domestic violence, driving under the influence, and assault.  Deficiencies in thinking were noted to be manifested by poor judgment and impulse control.  Regarding family relations, the examiner noted that the Veteran's family of origin relationships had been destroyed due to his PTSD symptoms, that the Veteran had married twice, and that he had incurred numerous domestic violence charges.  The Veteran's occupational deficiencies included being fired 4 to 5 times for fighting and arguing.  The examiner noted that when the Veteran was able to sustain a job, it was because he worked alone.  Finally, the Veteran's mood deficiency was manifested by severe depression.                        

The Veteran spoke of his symptoms during VA treatment sessions and examinations.  On VA examination in May 2010, the Veteran complained that he felt depressed all the time and did not want to go anywhere, do anything, or talk to anybody.  He reported that he just wanted to be left alone.  He also complained of loss of interest in playing golf, playing basketball, or going to ball games.  He claimed that he had to force himself to report for the examination.  He stated that he had not thought about suicide in a year but that he used to have suicidal thoughts very often.  The Veteran indicated that his medication was helpful because it prevented him from thinking of suicide all the time.  The Veteran also complained of experiencing panic attacks about 2 to 3 times per week that lasted a minute in duration and were triggered by fear of something.  He described them as causing him to shake, feel light-headed, and have his heart flutter.  He became nervous when driving and tended to not drive long distances.  The Veteran reported being married to the same woman twice, the first time for 14 years, and currently, for less than a year.  He stated that he had gotten divorced the first time because he had been using drugs and drinking.  He maintained that his relationships with his family members were distant and strained because he had damaged the relationships in the early days after Vietnam with his manifested PTSD symptoms.  The Veteran had no friends and was not involved in activities.  He would spend his time staying to himself, reading, watching some television, and working in the yard.  The Veteran reported having been in a few fights and having attempted suicide 2 to 3 times since discharge from service, most recently in the mid-1990's.  He had also been in and out of prison for various and numerous charges and legal incidents.  The Veteran reported being a local delivery driver for 9 and a half years.  He indicated that he had been alone most of the time at his job and that this was the longest job he had ever held.  He stated that he had been fired from 4 to 5 jobs for fighting and arguing with co-workers and bosses.  

At a January 2012 VA examination, the Veteran reported that he was suffering from irritability, anger, a preference for being alone, feeling of detachment from others, restricted affect, feeling a sense of a foreshortened future, depression, anxiety, occasional crying spells, suicidal ideation at times, low frustration tolerance, low energy and motivation, and feelings of hopelessness and helplessness.  He stated that he had been married to the same woman twice and was currently married to her.  They did not have children together, but the Veteran had two adult children outside of marriage whom he talked to occasionally and exchanged greeting cards with.  He reported having a good relationship with his wife.  He indicated that he had difficulty controlling his temper and was prone to becoming violent when he was angry.  He stated that he beat two men last week with a stick after they stole two car stereos and that the beating drew blood from the other two men.  He occasionally experienced auditory and visual hallucinations where he would either hear talking or music that was not there or see shadows of people that were not there.  He admitted to feeling a little bit paranoid during the interview.      

The evidence reveals that during the period under consideration, the Veteran was assigned GAF scores ranging from 45 to 60.  Specifically, the Veteran was assigned a GAF score of 60 in February 2011; a GAF score of 51 in January 2012; a GAF score of 50 in August 2010 and January 2012; and a GAF score of 45 in May 2010 and June 2012.  GAF scores of 45 and 50 are indicative of serious symptoms or serious impairment in social, occupational, or school functioning.  A GAF score of 51 is indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning.  A GAF score of 60 is indicative of mild symptomatology or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships.  

The Board acknowledges that on one occasion, the Veteran was assigned a GAF score of 51, which is indicative of only moderate symptoms or moderate impairment in social or occupational functioning.  On another occasion, the Veteran was assigned a GAF score of 60, which is indicative of only mild symptomatology or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships.  However, VA regulations do not dictate that disability percentages are assigned based solely on GAF scores.  See 38 C.F.R. § 4.130.  

As the Veteran has offered statements that are consistent with the medical evidence of record, the Board finds him to be competent and credible in describing his symptoms.  Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran's PTSD has resulted in occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood.  See Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. Apr. 8, 2013).  Therefore, the Veteran's PTSD is appropriately evaluated as 70 percent disabling for the period under consideration.  

As outlined above, the evidence clearly shows that the Veteran's PTSD caused deficiencies at work.  Specifically, the Veteran's difficulty in adapting to stressful circumstances and impaired impulse control had caused him to be fired from 4 to 5 jobs because he was fighting and arguing.  The Veteran reported that he had worked as a local delivery driver for 9 and a half years.  He indicated that he had been alone most of the time at his job and that this was the longest job he had ever held.  The May 2010 VA examiner determined that the Veteran had deficiencies in work due to his PTSD because when the Veteran had been able to sustain a job, it was only because he worked alone.  The Veteran's difficulty in adapting to stressful circumstances and impaired impulse control thus result in work deficiencies.    

The Veteran's PTSD also caused him to exhibit deficiencies in family relations.  The evidence shows that the Veteran had no friends and avoided any social connections because he preferred to be alone.  The VA medical records confirm that the Veteran suffered from social/emotional isolation and withdrawal.  Although he was remarried to his ex-wife, and he currently described his marriage as being good, he had had many episodes of domestic violence towards his wife in the past.  The May 2010 VA examiner found that the Veteran had deficiencies in family relations because his family of origin relationships had been destroyed due to his PTSD symptoms, he had married twice, and he had incurred numerous domestic violence charges.  Thus, the Veteran's impaired impulse control and inability to establish and maintain effective relationships have caused deficiencies in his family relations.    

The Veteran's impaired impulse control has also led to deficiencies in judgment and thinking.  The Veteran indicated at his May 2010 VA examination that he had an ongoing feeling of being disgusted and getting mad over anything.  He also reported at his January 2012 VA examination that he had difficulty controlling his temper and was prone to becoming violent when he was angry.  Indeed, the week before the examination, after two men had stolen two car stereos, the Veteran had beat them with a stick to the point of drawing blood from them.  The May 2010 VA examiner found that the Veteran had judgment deficiencies due to his history of arguing and fighting at work, prior drug and alcohol use, and legal problems that included forgery, domestic violence, driving under the influence, and assault.  She also found that the Veteran had deficiencies in thinking which were manifested by poor judgment and impulse control.  The Veteran's deficiencies in judgment and thinking are thus manifested by his impaired impulse control and irritability.  

Finally, the Veteran's PTSD caused the Veteran to have deficiencies in mood.  VA medical records confirm that the Veteran consistently suffered from severe depression, sadness, anhedonia, occasional crying spells, feeling a sense of a foreshortened future, feelings of hopelessness and helplessness, irritability, anger, feeling on edge, anxiety, and low frustration tolerance.  The May 2010 VA examiner found that the Veteran had deficiencies in mood due to severe depression.  Indeed, the Veteran's severe, near continuous depression affected his ability to function appropriately and effectively, as he did not want to go anywhere, do anything, or talk to anybody.  He just wanted to be left alone and even indicated at his May 2010 VA examination that he had had to force himself to show up to the examination.  He was not motivated to engage in once pleasurable activities and participated in no recreational activities whatsoever.  Additionally, the evidence suggests that but for the Veteran's medication, his suicidal ideation would be more frequent.  The Veteran indicated at his May 2010 VA examination that he used to have frequent suicidal thoughts but that his medication helped him to not have suicidal ideation all the time.  Moreover, the Veteran had attempted suicide 2 or 3 times in the past, most recently in the 1990s.  Furthermore, the Veteran had difficulty in adapting to stressful circumstances, as he would have panic attacks 2 to 3 times a week that were triggered by his fear of things.  He was also nervous about driving and tended not to drive for long distances.  Finally, the Veteran's impaired impulse control caused him to have difficulty controlling his temper, as he was prone to becoming violent when he was angry.  Thus, the Veteran's suicidal ideation, near continuous depression, difficulty in adapting to stressful circumstances, and impaired impulse control have caused him to have mood deficiencies.  

The Board acknowledges that the January 2012 VA examiner determined that the Veteran had moderate to severe impairment in social and industrial functioning.  She found that the Veteran's PTSD did not impair his ability to engage in physical and sedentary forms of employment and described the Veteran's level of occupational and social impairment as being that of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation.  However, despite this determination, the findings of the January 2012 VA examination were generally consistent with the May 2010 VA examination's findings of PTSD resulting in deficiencies in most areas.  Indeed, the January 2012 VA examination revealed that the Veteran continued to have deficiencies in mood, as he was found to be severely depressed and to have suicidal ideation.  The Veteran still had deficiencies in family relations because he had an inability to maintain effective relationships with family members other than with his wife and occasionally his adult children.  Finally, the Veteran continued to exhibit deficiencies in judgment and thinking.  Specifically, he had difficulty in adapting to stressful circumstances, as he admitted to having paranoid thoughts during the interview, and continued to exhibit impaired impulse control, as he had beaten two men with a stick the week before.  Therefore, despite the January 2012 VA examiner's conclusion, the January 2012 VA examination findings support the notion that the Veteran's PTSD resulted in deficiencies in most areas.            

Accordingly, the Board finds that, for the period under consideration, the evidence shows that the Veteran's PTSD has resulted in occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood.  Resolving all reasonable doubt in favor of the Veteran, the Board finds that the symptomatology during this time period more nearly approximates the criteria for a higher 70 percent rating.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  


C.  Rating in Excess of 70 Percent For PTSD

After reviewing the medical and lay evidence of record, the Board finds that the Veteran meets the criteria for an initial 70 percent rating for PTSD since December 31, 2002, the date of service connection.  The Board notes that as a result of the below decision, a TDIU has been granted, effective December 31, 2002, which contemplates the Veteran's total occupational impairment.  However, the evidence does not show that the Veteran's PTSD is productive of total social impairment due to symptoms outlined in the schedular rating.  

While the Veteran has experienced occasional delusions or hallucinations, they are not persistent.  Moreover, although the Veteran's sister has reported that the Veteran experiences memory loss for names of close relatives, this only occurs during his flashbacks and is not a persistent problem.  The evidence has also shown that the Veteran is consistently oriented to time and place and able to perform activities of daily living.  He has not exhibited gross impairment in thought processes or communication.  While the Veteran has demonstrated that he has problems with impulse control, these problems are not so severe as to result in grossly inappropriate behavior or cause the Veteran to be persistently in danger of hurting himself or others.  Specifically, although the Veteran had made a few suicide attempts in the past, the most recent attempt had occurred in the 1990s, and his current medication helped him to not have frequent suicidal ideation.  Further, although the Veteran had a history of violence linked to his anger and impulse control problems, these episodes of violence were not persistent, and thus, he was not constantly in danger of hurting others.  Finally, although the May 2010 VA examiner reported that the Veteran suffered from occupational and social impairment with deficiencies in most areas, she did not conclude that the Veteran suffered from total occupational and social impairment.  Therefore, the Board finds that an initial 100 percent rating for PTSD is not warranted for all periods under consideration.  




3.  Other Considerations

The Board concludes that the symptomatology noted in the medical and lay evidence has been adequately addressed by the evaluations assigned and do not more nearly approximate the criteria for higher evaluations at any time during all relevant periods on appeal.  See 38 C.F.R. §§ 4.114, Diagnostic Code 7354, 4.130, Diagnostic Code 9411 (2012); see also Fenderson, supra. 

The Board has also considered whether the Veteran's hepatitis C and PTSD present exceptional or unusual disability pictures as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  

Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence.  

Regarding the Veteran's hepatitis C, his 10 percent rating contemplates his subjective complaints of daily fatigue, malaise, and anorexia, as well as his functional impairment.  Although the Veteran exhibited fatigue, malaise, and anorexia, these symptoms did not require dietary restriction or continuous medication.  Additionally, the Veteran did not have any incapacitating episodes of hepatitis C as defined by VA regulations.  Despite complaints of nausea and vomiting, the evidence showed that these symptoms were attributable to the Veteran's GERD instead of his hepatitis C.  The Board acknowledges that a February 2005 SSA decision found that the Veteran was disabled due to his hepatitis C, syncope of unknown etiology, interstitial fibrosis, hypertension, GERD, and polysubstance abuse, and listed the Veteran's primary diagnosis as being hepatitis C.  As a result of the decision below, the Veteran has been granted a TDIU as of December 31, 2002, which contemplates his occupational impairment with respect to his hepatitis C.  Therefore, the Veteran's subjective complaints were included in the 10 percent schedular rating.    

With respect to PTSD, the Veteran's 70 percent rating since December 31, 2002 contemplates his functional impairment as well as his subjective complaints of depression, suicidal ideation, panic, and anger.  The Veteran's PTSD was found to be productive of occupational and social impairment with deficiencies in most areas, but there was no evidence of total social impairment.  His total occupational impairment has been contemplated in the grant of a TDIU as of December 31, 2002.  Therefore, the Veteran's subjective complaints were included in the 70 percent schedular rating.        

Thus, the Veteran's disability pictures are contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extraschedular consideration is not warranted.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine in granting a 70 percent rating for PTSD for all periods since December 31, 2002.  However, as the preponderance of the evidence is against the Veteran's claim for an increased initial rating for hepatitis C, that doctrine is not applicable to this issue.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).  

TDIU

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities.  38 C.F.R. §§ 3.340, 3.341, 4.16.

Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340 (2012).  Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16 (2012).  If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the Veteran.  38 C.F.R. §§ 3.341(a), 4.19 (2012).  Factors to be considered are the Veteran's education, employment history, and vocational attainment.  Ferraro v. Derwinski, 1 Vet. App. 326 (1991).  

For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm.  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.  See 38 C.F.R. 4.16(a).  Van Hoose v. Brown, 4 Vet. App. 361 (1993).

In determining whether a veteran is entitled to a TDIU, neither the veteran's nonservice-connected disabilities nor advancing age may be considered.  
 
In this case, the Veteran is service connected for PTSD, rated as 70 percent disabling since December 31, 2002 as a result of the above decision; hepatitis C, rated as 10 percent disabling; and right foot fungal infection, rated as 0 percent disabling.  Combined, these disabilities have been ratable at 70 percent.  38 C.F.R. § 4.25.  Thus, the threshold disability percentage requirement for a TDIU under section 4.16(a) is met since December 31, 2002.

The record establishes that the Veteran has one year of a junior college education and has completed training at schools for welding, pipe fitting, plumbing, painting, taping, and bedding.  Regarding his work history, the Veteran has reported at various VA examinations that he has work experience as a machine operator, mail handler, clerk, dispatcher, maker of electronics for harpoon missiles, and truck driver.  He indicates that he retired in 2002 from his job as a truck driver because he was having periods of loss of consciousness for several seconds while driving.  The Veteran is in receipt of SSA disability benefits due to his hepatitis C, syncope of unknown etiology, interstitial fibrosis, hypertension, GERD, and polysubstance abuse.  The Veteran's primary diagnosis was found to be hepatitis C while his secondary diagnosis was hypertension.

On VA psychiatric examination in April 2003, the Veteran complained of sleep problems where he would wake up every hour.  He indicated that he had few friends and that he would ruminate on distressing issues, such as people who had angered him or treated him unfairly.  He maintained that he had problems with anger control and that he had hit another man with a tool during an argument 3 weeks ago.  The Veteran also complained of having problems with both short and long term memory, as well as concentration.  He reported forgetting where he was going while driving, forgetting that he left food on the stove at home, forgetting his medication and medical appointments, and forgetting where he parked the car.  He indicated that he currently spent his time reading and watching television, as he could no longer play golf or wash his car without feeling fatigued and dizzy.  The Veteran reported that he had worked many jobs and attended many schools during the years following his service and that he had lost one or two of the jobs due to his anger problems.  However, the Veteran indicated that his prior drug use was mostly responsible for his difficulties with staying at jobs or school.  He stated that most recently, he had spent 9 years driving a truck, but had to quit last December because he was getting black outs of loss of consciousness for several seconds while driving.  He indicated that he was unclear of the etiology of these episodes of loss of consciousness, but believed that his hypertension was the cause.  He was currently unemployed and maintained that he could not work because he continued to feel dizzy and weak as if he were going to black out.  The Veteran's impulse control was found to be questionable due to his history of fighting, spousal violence, and criminal acts.  The examiner indicated that the Veteran's reported history suggested that he had been more symptomatic during the 1970s and 1980s when he was hospitalized, using drugs, having legal troubles, and losing various jobs.  The examiner noted that the Veteran was currently not reporting significant impairment in occupational functioning due to his PTSD symptoms.   

At a VA hepatitis C examination in June 2004, the Veteran stated that he had worked at a tire company for about a year in 1970 and then worked at a post office for about eight months or a year.  He reported current fatigue, loss of energy, variable appetite, and some digestive problems.  He indicated that his weight had fluctuated up and down from 205 to 235 pounds.  Examination revealed that the Veteran weighed 225 pounds with no signs of ascites.  The examiner noted that the Veteran had chronic active hepatitis C that was non-cirrhotic.  The Veteran's weight was found to be stable although he had lost 10 pounds since going into treatment.  The examiner also noted that the Veteran was status post six week interferon treatment with status post interferon retinopathy with presence of cotton-wool spots that had resolved recently.  The Veteran continued to have intermittent blurred vision, although his vision had overall improved.  The examiner reported that the Veteran continued to have a feeling of loss of energy and fatigue, as he had been experiencing for the last 3 to 4 years.    

The Veteran's sister submitted a January 2005 lay statement in support of his claim.  She reported that the Veteran had lost many jobs over the years due to his personality changes and flashbacks, and that he had suffered black outs after many violent encounters with family and friends.  

On VA hepatitis C examination in July 2005, the Veteran reported experiencing intermittent pain in the right upper quadrant, nausea, and vomiting.  He maintained that he had daily fatigue, malaise, and anorexia.  He stated that he had a poor appetite, ate only 2 meals a day, had stable weight, and only slept an average of 4 hours each night.  He complained that he would get the flu every 2 months and suffer from fever, sweating, muscle aches, headaches, nausea, and vomiting.  He also indicated that he was awaiting treatment with non-interferon medication.  He maintained that he currently had to force himself to do anything, such us getting up and walking in the backyard.  He reported that when he walked, he was always ready to stop when he felt lightheaded or tired.  He stated that he tried to mow the lawn as much as he could with a riding lawn mower but that he could not drive anymore due to possible black out spells.  The Veteran described his symptoms as being moderate in severity.  Examination revealed that the Veteran's right upper quadrant was tender to palpation.  The examiner noted that the hepatitis C's impact on occupational activities included mild to moderate intermittent pain in the right upper quadrant, constant fatigue or weakness, anorexia, lack of energy/stamina, and vision difficulty.  Additionally, every two months, the Veteran was noted to suffer from a week-long episode of flu-like symptoms that included nausea, vomiting, fever, muscle aches, headaches, and fatigue, and required mostly bed rest for the first two days without the prescription of a physician.       

At a July 2005 VA psychiatric examination, the Veteran reported waking up every hour when trying to sleep.  He stated that he did not know why he woke up, but did not report that it was due to nightmares.  He maintained that after discharge from service, he had worked as a mail handler at the post office, as a clerk, as a machinist at a tire company, as a dispatcher for a company, and as a truck driver.  The Veteran indicated that when he worked for the post office in 1974, he was charged with defrauding the government in a conspiracy regarding checks and spent 6 months in prison.  He reported that his last job as a truck driver had lasted 9 years and 8 months.  

During his January 2006 travel board hearing, the Veteran testified that due to his hepatitis C disability, he had no energy.  He maintained that he would have to lie down and get bed rest every week because he would feel so sick.  The Veteran also reported that due to his PTSD, he would get very little sleep at night because of nightmares.  

On VA hepatitis C examination in November 2009, the Veteran complained of experiencing polyarticular arthralgias of the hands, wrists, and left shoulder for 6 years.  He reported having chronic fatigue for 6 or 7 years.  He stated that he had intermittent nausea that usually lasted 5 to 10 minutes and occurred 2 to 3 times per week.  The Veteran reported that he had last worked in December 2002 but that he had quit his job because he had experienced episodes of "blanking out" on the job.  Examination revealed that the Veteran's abdomen was soft, nontender, and without hepatosplenomegaly.  The Veteran had left and right shoulder tenderness with movement as well as left shoulder crepitus.  There was mild tenderness in his elbows.  The examiner diagnosed the Veteran with history of HCV viremia and 2003 liver biopsy with evidence of chronic hepatitis but no cirrhosis.  He indicated that the Veteran experienced chronic fatigue, intermittent nausea, and arthralgias, like many patients with HCV viremia, but that his HCV viremia had been found to be negative twice.  The Veteran's polyarticular arthralgias were noted to be most typically associated with HCV viremia.  
     
At a May 2010 VA psychiatric examination, the Veteran complained that he felt depressed all the time and did not want to go anywhere, do anything, or talk to anybody.  He reported that he just wanted to be left alone.  He indicated that he had to struggle to initiate and maintain sleep and would sleep only about 4 hours a night and feel unrefreshed in the morning.  He also complained of low energy.  He claimed that he had to force himself to report for the examination.  He maintained that his relationships with his family members were distant and strained because he had damaged the relationships in the early days after Vietnam with his manifested PTSD symptoms.  The Veteran had no friends and was not involved in activities.  The Veteran was noted to have been in a few fights and to have attempted suicide 2 to 3 times since discharge from service, most recently in the mid-1990's.  He had also been in and out of prison for various and numerous charges and legal incidents.  The examiner noted that the Veteran had poor impulse control and that he had a severe substance use problem at one time.    

Examination revealed that the Veteran had sleep impairment, and when he did not sleep well, it made him anxious and lose focus and energy.  He was not able to get things done when he had not slept well.  The Veteran also experienced panic attacks about 2 to 3 times per week that lasted a minute in duration and were triggered by fear of something.  He described them as causing him to shake, feel light-headed, and have his heart flutter.  He became nervous when driving and tended to not drive long distances.  The Veteran reported having been a local delivery driver for 9 and a half years.  He indicated that he had been alone most of the time at his job and that this was the longest job he had ever held.  He stated that he had been fired from 4 to 5 jobs for fighting and arguing with co-workers and bosses.  The examiner noted that the Veteran had retired in 2003 or 2004 due to his physical problems of hepatitis C, rotator cuff problems, and back problems.    

Based on the Veteran's report, presentation, records, and history, the examiner found that he appeared to be struggling with a very severe level of PTSD.  The Veteran stated that he had an ongoing feeling of being disgusted and getting mad over anything.  He was noted to have no friends and to avoid social connections.  The examiner determined that the Veteran did not have total occupational impairment due to PTSD, but she did find deficiencies in judgment, thinking, family relations, work, and mood.  Specifically, with regards to judgment deficiencies, she cited the Veteran's arguing and fighting at work, drug and alcohol use, and legal problems that included forgery, domestic violence, driving under the influence, and assault.  Deficiencies in thinking were noted to be manifested by poor judgment and impulse control.  The Veteran's occupational deficiencies included being fired 4 to 5 times for fighting and arguing.  The examiner noted that when the Veteran was able to sustain a job, it was only because he worked alone.  

On VA psychiatric examination in January 2012, the Veteran was noted, in pertinent part, to be suffering from insomnia, irritability, anger, impaired concentration, a preference for being alone, depression, anxiety, low frustration tolerance, and low energy and motivation.  The Veteran stated that he had not worked since 2002 when he had to quit working due to medical problems.  He indicated that he had difficulty controlling his temper and was prone to becoming violent when he was angry.  He stated that he beat two men last week with a stick after they stole two car stereos and that the beating drew blood from the other two men.  He also complained of problems with sleep initiation and sleep maintenance, stating that he averaged only 2 to 3 hours of sleep a night.  

Examination revealed that the Veteran was casually dressed, appropriately groomed, and oriented in all spheres.  Mood was described as fair, and affect was restricted.  The Veteran denied current suicidal or homicidal ideation.  He occasionally experienced auditory and visual hallucinations where he would either hear talking or music that was not there or see shadows of people that were not there.  He admitted to feeling a little bit paranoid during the interview.  Speech was appropriate, and thought processes were linear and logical.  There was no overt evidence of psychoses, tangentiality, circumstantiality, flight of ideas, loosening of associations to speech, or cognitive deficits.  The examiner found that the Veteran's PTSD was productive of moderate to severe impairment in social and industrial functioning.  She found that the Veteran's PTSD did not impair his ability to engage in physical and sedentary forms of employment.  She described the Veteran's level of occupational and social impairment as being that of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation.         

At a VA hepatitis C examination in January 2012, the Veteran complained of feeling tired all the time, having worsening arthralgia, experiencing intermittent nausea and vomiting episodes twice a week, and having poor appetite.  He reported that his weight had been stable over the last 2 years at 230 pounds.  The examiner noted that the Veteran suffered from intermittent malaise, nausea, and vomiting, as well as near constant and debilitating fatigue and arthralgia.  The examiner found that in the past 12 months, the Veteran had experienced incapacitating episodes lasting at least 1 week but less than 2 weeks.  The examiner found that the hepatitis C impacted the Veteran's ability to work because he was constantly tired and felt pain all over his body.  The Veteran was noted to have quit working as a delivery driver in 2002 due to hepatitis C symptoms.  

In an August 2012 VA hepatitis C addendum opinion, the January 2012 VA examiner noted that the Veteran had been treated with anti-viral medications for only a short time period due to the side effect of retinopathy.  The Veteran's viral load was reported to have been negative since 2006.  His most recent blood test showed normal liver enzymes, and a US of the abdomen did not show any cirrhotic changes in the liver.  The examiner indicated that the Veteran's weight had been well-maintained over the years by being over 200 pounds.  The Veteran was not on any dietary restrictions or any medications for anorexia, fatigue, or malaise due to hepatitis C.  

The examiner acknowledged the Veteran's reported symptoms of near-constant debilitating fatigue, malaise, nausea, vomiting, and arthralgia due to hepatitis C, but she explained that in the absence of any detectable viral load or viremia since 2006 on repeated blood tests, the Veteran's hepatitis C was less likely the cause for his reported symptoms.  Regarding incapacitating episodes, the examiner noted that the Veteran had reported incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) due to hepatitis C in the past 12 months at least once, but less than twice, per week.  He indicated that the episodes had required self-recommended bed rest and not bed rest recommended by a physician.  The examiner found that according to the gastrointestinal and ear, nose, and throat departments, the Veteran's nausea and vomiting were due to GERD.  As for the Veteran's symptoms of fatigue, malaise, anorexia without any evidence of weight loss or malnutrition, arthralgia without any evidence of joint inflammation, moderate and intermittent right upper quadrant abdominal pain with normal US report and blood test reports and negative hepatitis C viral load, the examiner determined that although these symptoms were of unknown etiology, given the positive hepatitis C status in the past, the Veteran could be afforded the benefit of the doubt that these symptoms were due to his hepatitis C.  

With respect to the impact of the hepatitis C on employment, the examiner acknowledged the Veteran's complaints of constantly feeling tired and having pain all over his body.  She noted that he had quit working as a delivery truck driver in 2002 due to hepatitis C symptoms.  The Veteran did not currently have any visual symptoms from interferon retinopathy because his symptoms had resolved.  The examiner concluded that the Veteran's subjective symptoms of fatigue, malaise, anorexia, arthralgia, and intermittent right upper quadrant pain from hepatitis C in the past with undetectable viral load or objective medical evidence did not render him unable to maintain gainful physical or sedentary employment.   

Based on the foregoing evidence, the Board finds that the Veteran's service-connected disabilities, taken together, prevent him from obtaining and maintaining substantially gainful employment.    

The Veteran has worked primarily in manual labor and driving occupations and has received training solely for manual labor occupations.  Essentially, the medical evidence indicates that the Veteran cannot engage in labor intensive work such as the work he had performed since discharge from service.  According to the August 2012 VA examiner, the Veteran's hepatitis C caused him to constantly feel tired and have pain all over his body from his arthralgias and upper right quadrant pain.  Moreover, the July 2005 VA examiner noted that every two months, the Veteran was subject to flu-like symptoms that would force him to stay and rest in bed for the first two days of the week-long episode.  By August 2012, the VA examiner noted that these incapacitating episodes of flu-like symptoms that required bed rest had increased to occurring on an average of once a week.  This evidence of chronic fatigue and pain and weekly incapacitating episodes suggest that any work that involved operating machinery, making electronics, welding, pipe fitting, plumbing, painting, taping, or bedding would not be feasible.  

Regarding the occupational limitations caused by the Veteran's PTSD, the Board notes that the Veteran experiences severe insomnia due to nightmares.  The evidence has consistently shown that the Veteran is only able to obtain an average of 2 to 4 hours of sleep a night due to his PTSD, which likely affects his alertness during the day and would further impact his ability to obtain a position involving manual labor.  The Veteran's insomnia would probably also cause him to be extremely sleepy during the day, which would make it difficult for him to stay awake in his previous jobs of being a dispatcher, mail handler, or clerk.  Additionally, a May 2010 VA examiner determined that when the Veteran did not sleep well, it made him anxious and lose focus and energy, as he was not able to get things done when he had not slept well.  Furthermore, the Veteran's problems with anger and poor impulse control would preclude him from maintaining gainful employment in any jobs which required him to interact with other people.  Indeed, the evidence shows that the Veteran had difficulty controlling his temper and was prone to becoming violent when he was angry.  At his January 2012 VA examination, he stated that he had beat two men last week with a stick after they stole two car stereos and that the beating  had drawn blood from the other two men.  The May 2010 VA examiner noted that the Veteran had been fired from 4 to 5 jobs for fighting and arguing with his co-workers and bosses and that when the Veteran had been able to sustain a job, it was only because he had worked alone.  

The Board acknowledges that the May 2010 and January 2012 VA psychiatric examiners did not find that the Veteran was unable to work due to his PTSD.  Specifically, the May 2010 examiner determined that the Veteran did not have total occupational impairment due to his PTSD, and the January 2012 examiner found that the Veteran's PTSD did not impair his ability to engage in physical and sedentary forms of employment because he only had occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  Additionally, the August 2012 VA examiner found that the visual symptoms from interferon retinopathy had resolved, and the Veteran's current hepatitis C symptoms did not render him unable to maintain gainful physical or sedentary employment.  However, the Board finds that the overall evidence indicates that the Veteran's hepatitis C and PTSD have precluded him from obtaining and maintaining substantially gainful employment.  The Veteran's hepatitis C was manifested by fatigue, arthralgia and the Veteran's PTSD was found to be productive of deficiencies in judgment, thinking, family relations, work, and mood.  The Veteran's anger problems and poor impulse control due to his PTSD restrict him to occupations where he is able to work alone and does not have to interact with other people.  Moreover, the daily fatigue, pain, and weekly incapacitating episodes due to the Veteran's hepatitis C limit him from performing occupations involving manual labor or driving.  Finally, the Veteran's insomnia with associated anxiety and loss of focus and energy due to his PTSD would further limit his ability to sustain a job involving manual labor or sedentary employment.  The Board concludes that the restrictions caused by the Veteran's service-connected hepatitis C and PTSD prevent the Veteran from engaging in a substantially gainful occupation.  

Thus, given the Veteran's educational and occupational history and the constraints noted above, the weight of the competent, probative evidence indicates that as of December 31, 2002, the Veteran has been prevented from obtaining and retaining a substantially gainful occupation as a result of his service-connected disabilities.  

In summary, the Veteran has met the criteria for a TDIU, and the Board finds the Veteran's service connected disabilities, considered together, render him unemployable.  Accordingly, entitlement to a TDIU is granted, effective December 31, 2002.  In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).      


ORDER

An initial rating in excess of 10 percent for hepatitis C is denied.  

Since December 31, 2002, an initial 70 percent rating, but no higher, for PTSD is granted.  

Entitlement to a TDIU is granted, effective December 31, 2002.  


REMAND

After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim for an effective date earlier than December 31, 2002 for the grant of service connection for PTSD.  

Following the July 2009 rating decision effectuating the March 2009 Board decision by granting service connection for PTSD, the Veteran expressed his disagreement with the assigned effective date in an October 2009 statement.  Although the RO subsequently issued a June 2011 statement of the case and August 2012 supplemental statement of the case regarding the issue of increased initial rating for PTSD, neither of these documents was complete enough to allow the Veteran to present written and/or oral argument before the Board regarding his earlier effective date issue.  Specifically, there was no summary of the applicable laws and regulations governing effective dates, with appropriate citations, nor was there a discussion of how such laws and regulations affected the determination of the assigned effective date.  See 38 C.F.R. § 19.29(b) (2012).  Accordingly, the Board is required to remand this issue to the RO/AMC for the issuance of a statement of the case.  38 U.S.C.A. § 7105(d)(1) (West 2002 & Supp. 2012); 38 C.F.R. §§ 19.26, 19.29, 19.30 (2012); Manlincon v. West, 12 Vet. App. 238 (1999).  After the RO/AMC has issued the statement of the case, the issue should be returned to the Board only if the Veteran perfects an appeal in a timely manner.  See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997).  

Accordingly, the case is REMANDED for the following action:

Issue a statement of the case pertaining to the issue of entitlement to an effective date earlier than December 31, 2002 for the grant of service connection for PTSD.  The statement of the case must contain the information required by 38 U.S.C.A. § 7105(d)(1) and 38 C.F.R. § 19.29, as well as notification that the issue should only be returned to the Board if a timely substantive appeal is filed.
 
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).




______________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals







Department of Veterans Affairs