Citation Nr: 18143662 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 14-34 210 DATE: October 19, 2018 ORDER Entitlement to a rating of 20 percent, but no higher, for a degenerative arthritis of the spine prior to April 11, 2018 is granted. Entitlement to a rating higher than 20 percent for a degenerative arthritis of the spine is denied. A separate 10 percent rating, but no higher, for right lower extremity radiculopathy is granted. Entitlement to a higher rating for posttraumatic stress disorder (PTSD) with parasomnia, rated as 30 percent disabling prior to November 11, 2014 and 70 percent thereafter, is denied. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s degenerative arthritis of the spine was manifested by forward flexion of the thoracolumbar spine of greater than 30 degrees but not greater than 60 degrees, even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement, repetitive motion, or flare-ups; ankylosis; intervertebral disc syndrome with incapacitating episodes and associated neurological impairment other than right lower extremity radiculopathy. 2. Throughout the appeal period, the Veteran’s degenerative arthritis of the spine has been productive of neurological impairment of the right lower extremity that resulted in disability analogous to mild incomplete paralysis of the sciatic nerves; no other associated neurological impairment is demonstrated. 3. Prior to November 11, 2014, the Veteran’s PTSD with parasomnia resulted in impairment that most closely approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 4. After November 11, 2014, the Veteran’s PTSD with parasomnia was not shown to be productive of a disability picture that more nearly approximates total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to April 11, 2018, the criteria for an initial 20 percent rating, but no higher, for degenerative arthritis of the spine have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1—4.14, 4.40, 4.45, 4.59 4.71a, Diagnostic Code 5237-5242 (2017). 2. Beginning on April 11, 2018, the criteria for an initial rating in excess of 20 percent rating for degenerative arthritis of the spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1—4.14, 4.40, 4.45, 4.59 4.71a, Diagnostic Code 5237-5242 (2017). 3. The criteria for a separate 10 percent rating for right lower extremity radiculopathy have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 4. The criteria for entitlement to a rating higher for PTSD with parasomnia, rated as 30 percent disabling prior to November 12, 2014 and 70 percent disabling thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Codes 9423-9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 2007 to December 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Board remanded the instant appeals for additional development. In a July 2018 rating decision, the agency of original jurisdiction (AOJ) granted a 20 percent rating for degenerative arthritis of the spine, effective April 11, 2018. The AOJ also granted a 70 percent rating for PTSD with parasomnia, effective November 12, 2014. However, a higher rating is available for both these disabilities. The Veteran is presumed to seek the maximum available benefit for a disability. As such, these claims are still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board finds that a claim for a TDIU has been implicitly raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Consequently, the Board has added this issue to the issues for current appellate consideration. Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). 1. Entitlement to a rating higher than 10 percent for a degenerative arthritis of the spine prior to April 11, 2018, and a rating higher than 20 percent thereafter. The Veteran generally contends that he is entitled to a rating higher than 10 for a lumbar spine disability prior to April 11, 2018 and a rating higher than 20 percent thereafter. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while “pain may cause a functional loss, pain itself does not constitute a functional loss,” and, is therefore, not grounds for entitlement to a higher disability rating). The regulations provide for evaluation of disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Intervertebral disc syndrome (IVDS) may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). The Veteran’s degenerative arthritis of the spine is rated under Diagnostic Codes 5237-5242. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. In addition, any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also Plate V. Alternatively, intervertebral disc disease can be evaluated under the Formula for Rating IVDS. Under that Formula, a 10 percent rating is assigned where intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. Disability ratings for the nerves, are found at 38 C.F.R. § 4.124a. Diagnostic Code 8520 pertains to the sciatic nerve and provides for a 10 percent rating for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis of the nerve (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). 38 C.F.R. § 4.120 provides that when rating peripheral nerve injuries and residuals, the rater should consider the relative impairment of motor function, trophic changes, and/or sensory disturbances. Attention should be given to the site and character of the injury. The Veteran’s service treatment records showed that he was treated for back pain during service after he was in a vehicle that was hit by an improvised explosive device. He denied radicular pain or bowel or bladder dysfunction. He was given a profile and prescribed physical therapy. A history of degenerative joint and disc disease was noted, along with a primary diagnosis of sacroiliitis. An August 2012 VA examination noted a diagnosis of sacroiliitis and chronic lumbar strain. On range of motion testing he exhibited full range of motion with flexion to 85 degrees with pain, extension to 25 degrees with pain, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The examiner noted pain with flexion and extension, as well as tenderness to palpation, guarding and muscle spasm that did not result in abnormal gait or spinal contour. There were no additional functional limitations following repetitive motion. Strength and reflexes throughout the lower extremities were normal. There was no muscle atrophy. Straight leg raising was negative, bilaterally. There were no symptoms of radiculopathy. There was no evidence of IVDS or a history of incapacitating episodes. On VA examination in April 2015 the Veteran reported low back shooting pains on the lower right. He related being physically active, playing sports and regularly exercising at the gym. The Veteran was a full-time student. The examiner noted that imaging studies revealed lumbar lordosis and mild disc space narrowing and facet hypertrophy at L5-S1. He endorsed flare-up in symptoms in the morning and with prolonged sitting, as well as while playing sports. Forward flexion was to 60 degrees with pain, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation 30 degrees, and left lateral rotation to 30 degrees. There was no additional loss of function or range of motion after three repetitions. There was no evidence of pain with weight bearing or localized tenderness or pain on palpation. There was guarding or muscle spasm of the thoracolumbar that did not result in abnormal gait or abnormal spinal contour. Strength and reflexes throughout the lower extremities were normal. There was no muscle atrophy. Straight leg raising was positive on the right, but the examiner found no evidence of radicular pain or any other signs or symptoms due to radiculopathy. No neurologic abnormalities were noted. The Veteran had IVDS without a history of incapacitating episodes. VA treatment records in December 2015 the Veteran was seen for persistent back pain. Imaging revealed moderate to advanced degenerative disc disease at L4-S1. There was no thoracic or lumbar spinous process tenderness or paravertebral muscle tenderness. Lumbar flexion was to 45 degrees with no exacerbation of pain. Right straight leg raise positive. The clinician noted chronic lumbar pain secondary to degenerative disc disease at L4-S1 with minimal radicular pattern. On VA examination on April 11, 2018, the VA examiner noted flexion to 55 degrees, extension 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 20 degrees, right lateral rotation to 10 degrees and left lateral rotation to 15 degrees. There was no additional loss of function with repetitive movement. There was no pain on weight bearing. Passive range of motion of the spine was not performed as it is not feasible to do this in a safe and reasonable manner. The Veteran denied flare-ups. X-ray in 2014 showed increased lumbar lordosis related to body habitus and mild disc space narrowing and facet hypertrophy at L5-S1. Straight leg raise was negative, bilaterally. He exhibited symptoms consistent with mild radiculopathy of the right lower extremity. There was no IVDS or a history of episodes of prescribed bed rest during the past 12 months. The examiner diagnosed degenerative arthritis of the spine. In light of the above medical evidence, lay statements from the Veteran describing the severity of his symptoms, and in consideration of this functional impairment and the holdings of Deluca, Mitchell, and Burton, the Board finds that prior to April 11, 2018, resolving all doubt in the Veteran’s favor, under the General Rating Formula for Diseases and Injuries of the Spine the Veteran’s degenerative arthritis of the spine had limitation of motion for which a 20 percent rating is warranted. An April 2015 VA examination report found forward flexion was to 60 degrees with pain while a December 2015 VA treatment note indicated that lumbar flexion was to 45 degrees with no exacerbation of pain. See 38 C.F.R. §§ 4.40, 4.45, 4.59. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. However, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his degenerative arthritis of the spine at any point during the appeal period. Specifically, at no point during the appeal period has the Veteran’s lumbar spine been characterized by ankylosis or forward flexion limited to 30 degrees or less, even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, supra. The recorded range of motion findings show the Veteran’s flexion was at worst, to 45 degrees with consideration of pain and repetitive movement. Further, there was no evidence of ankylosis or any limitation of motion that reasonably approximated ankylosis. Therefore, the Board finds that a rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. The Board has also considered whether the Veteran’s degenerative arthritis of the spine has resulted in intervertebral disc syndrome with incapacitating episodes as described under Diagnostic Code 5243. The Veteran has not alleged, and the record has not established, that he suffers from IVDS or has been prescribed bedrest of a physician. Therefore, a higher rating is also not assignable under the Formula for Rating IVDS Based on Incapacitating Episodes. The Board notes spinal arthritis was found on X-ray; however, such X-ray evidence of arthritis would not avail the Veteran of a higher rating. Although, as noted above, a 10 percent rating can be assigned for degenerative arthritis of the lumbar vertebrae resulting in either painful motion or non-compensable motion, that is only true when limitation of motion is non-compensable. As the Veteran has already been assigned ratings for his degenerative arthritis of the spine to compensate his for painful motion, a separate compensable disability cannot be awarded for arthritis. Pursuant to 38 C.F.R. § 4.45 (f), the lumbar vertebrae are considered a group of minor joints that is ratable on a parity with a major joint. In addition to considering the orthopedic manifestations of a back disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. However, the Veteran has not alleged, and the evidence does not show, that he has bladder impairment, bowel impairment or neurological impairment in the left lower extremity as a result of his service-connected degenerative arthritis of the spine. However, the record does show complaints of radiating pain into the right lower extremity. The Veteran reported low back shooting pains on the lower right extremity in an April 2015 VA examination. The examiner noted that imaging studies revealed mild disc space narrowing and facet hypertrophy at L5-S1. Straight leg raising was positive on the right, but the examiner found no evidence of radicular pain or any other signs or symptoms due to radiculopathy. No neurologic abnormalities were noted. VA treatment records in 2015 noted right straight leg raise positive and the clinician noted chronic lumbar pain secondary to degenerative disc disease at L4-S1 with minimal radicular pattern. On VA examination in April 2018, straight leg raise was negative, bilaterally. However, the April 2018 examiner noted that the Veteran exhibited symptoms consistent with mild radiculopathy of the right lower extremity. Accordingly, resolving all doubt in the Veteran’s favor, the Board finds that, based on the lay and medical evidence, the Veteran has had neurologic impairment in his right lower extremity associated with his degenerative arthritis of the spine. As such, the Board concludes that the evidence supports entitlement to a separate 10 percent rating under Diagnostic Code 8520 for mild radiculopathy of the right lower extremity radiculopathy. However, a higher rating of 20 percent is not warranted as there is clearly no evidence of radicular impairment to a moderate degree. See 38 C.F.R. § 4.124a. The Board finds that the Veteran’s impairment in the sciatic nerve is wholly sensory, as the Veteran has not been found to have any problems with motor functioning or atrophy or any non-sensory symptoms associated with neurological impairment. The Board finds that sciatic impairment is best described as mild because of the lack of findings of atrophy or motor or reflex symptomatology. The Board finds that the weight of the evidence is in the Veteran’s favor and a separate 10 percent rating for mild incomplete paralysis of the right sciatic nerve is warranted. The Board finds that prior to April 11, 2018, a rating of 20 percent for the degenerative arthritis of the spine is warranted. However, a rating greater than 20 percent is not warranted for any period during the course of the appeal. The Board further finds that a separate 10 percent rating, but not greater, is warranted for the right lower extremity radiculopathy. The Board finds that the preponderance of the evidence is against the assignment of any ratings higher than those assigned. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a rating higher than 30 percent for PTSD prior to November 11, 2014, and a rating higher than 70 percent thereafter The Veteran contends that he is entitled to a rating higher than 30 percent for his service-connected psychiatric disorder prior to November 11, 2014, and a rating higher than 70 percent thereafter. The Veteran’s service-connected psychiatric disorder is rated under Diagnostic Codes 9423-9411 which utilize General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under that Formula, 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 found to be generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as a depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders, Diagnostic Code 9411. A 50 percent rating is assigned when there is 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 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 the inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. As the United States Court of Appeals for the Federal Circuit recently explained, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez–Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.” 38 C.F.R. § 4.126(a). Global Assessment of Functioning (GAF) scores are a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association’s DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging between 71 and 80 reflect 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). GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but is generally able to function “pretty well,” and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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). See 38 C.F.R. § 4.130 [incorporating by reference the VA’s adoption of the DSM-IV, for rating purposes]. VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As the Veteran’s increased rating claim was originally certified to the Board after August 4, 2014, the DSM-5 is applicable to this case. Effective August 4, 2014, VA also amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated DSM-5. However, according to DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, the suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. The Veteran’s service treatment records showed that he was treated during service for sleeping problems. He was prescribed Ambien. On separation from service the Veteran reported ongoing nightmares and problems sleeping since his first deployment. An August 2012 VA examination noted a diagnosis of parasomnia, not otherwise specified. The examiner noted ongoing problems with anxiety and chronic sleep impairment with nightmares. The Veteran also described intrusive memories of his experiences in Afghanistan, avoidance of stimuli, hypervigilance, exaggerated startle response and irritability. Reportedly, he was discharged from service due to marijuana use. The Veteran was divorced and had no children. He had been unable to find employment post-discharge from service and resided with his cousins. He related staying close to childhood friends and having new friends. He enjoyed going to bars with friends and playing sports, as well as reading. He stayed in touch with his mother, although at that time she was in another country. The examiner assigned a GAF score of 60 and indicated that the Veteran’s symptoms caused occupational and social impairment with 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. Accordingly, prior to November 11, 2014, the Veteran’s primary psychiatric symptoms were consistent with the 30 percent rating. The medical evidence noted the GAF score of 60 was indicative of moderate symptoms (e.g., flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). While the Veteran had some social impairment, difficulty in establishing and maintaining effective work and social relationships was not shown. Despite a tendency to self-isolate, he enjoyed spending time with friends. He was a full-time student. Significantly, the VA examiner determined that the Veteran’s psychiatric disorder was productive of occupational and social impairment with 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. Upon review of the record, the Board finds the Veteran’s symptoms did not result in occupational and social impairment consistent with a higher 50 percent rating prior to November 2014. Generally, the examiners and treating clinicians who treated the Veteran described the Veteran’s occupational and social impairment as consistent with the criteria for only a 30 percent rating. The Board concludes that the medical findings on examination are of greater probative value than the Veteran’s allegations regarding the severity of his psychiatric disability. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an initial rating in excess of 30 percent prior to November 2014. On VA examinations in March 2015 the Veteran received outpatient mental health counseling addressing PTSD and coping with his discomfort in crowds. He stated that as a result of combat exposure, in particular getting hit with an IED, he experienced panic attacks several times a month, and nightmares several times a week. He also endorsed symptoms of hypervigilance, difficulty relaxing, flashbacks, unsuccessful attempts to block out memories of combat, nervousness, sadness, anger outbursts, irritability, worry, extreme social discomfort, isolation, becoming easily startled, concentration problems, mild memory problems, difficulty focusing, restlessness, poor quality sleep, disturbances of motivation and mood, and difficulty enjoying things. The examiner noted difficulty in establishing and maintaining effective work and social relationships, and adapting to stressful circumstances, including work or a work like setting. The Veteran reported that he lived alone and had one friend who lived close and with whom he was in frequent contact, and two friends who lived far away. He described self-isolating and anxiety that interfered with his ability to be employed. Since discharge from service, he had held one part-time job. The examiner noted a diagnosis of PTSD and found that the Veteran’s psychiatric symptoms were productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, depressed mood, disturbances of motivation and mood, forgetting names and recent events, chronic sleep impairment, panic attacks (weekly), difficulty in adapting to stressful circumstances, difficulty in adapting to work, difficulty in adapting to a worklike setting, anxiety, difficulty in establishing and maintaining effective work and social relationships, and forgetting directions. He was assigned a GAF of 44. On VA examination in April 2015 the Veteran related being physically active, playing sports and regularly exercising at the gym. He was a full-time student. VA treatment records in 2015 showed that the Veteran reported that despite symptoms of anxiety and feelings of hopelessness, he was going out with friends and even arranged a social outing. He was able to appreciate how his avoidance of people/the public could interfere with good effort to find a job in advance of graduating from his master’s degree. He denied suicidal or homicidal ideation. He was fully oriented. In 2016 the Veteran became homeless, mostly sleeping in his car and occasionally with a friend. He was employed part-time and had completed his master’s degree. He described an altercation with a customer at work. He endorsed being at risk for suicide if he were to discontinue treatment, and admitted to occasional passing suicidal ideation without plan or intent. Treatment records from 2014 to 2016 generally described the Veteran as neatly groomed with adequate hygiene, and cooperative. He was able to communicate adequately. Attention was normal. His memory was grossly intact. His cognition was logical and thought content realistic. There was no psychosis. He understood likely outcomes of behavior. He was self-aware. Impulse control was adequate, mood was neutral. Concentration was normal. Affect was restricted, broad. Diagnoses included PTSD, unspecified depressive disorder and unspecified anxiety disorder. On VA examination in January 2017 the Veteran complained of impaired sleep, nightmares, avoidance of stimuli, markedly diminished interest or participation in significant activities, irritability, feelings of detachment or estrangement from others, hypervigilance, exaggerated startle response, flattened affect, problems with concentration, depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly, suicidal ideation, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. The Veteran had difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. The Veteran, who was divorced, denied being in a current romantic relationship. He denied having a social support system. He had two siblings with whom he was not close. The Veteran stated that he did not do any leisure activities. The Veteran had earned his Master’s Degree in Sports Management. He was employed and would become anxious while interacting with customers. The Veteran was oriented times four. He wore appropriate attire for the occasion. His mood seemed to be dysthymic with congruent, flattened affect. The Veteran’s speech rate/tone was normal. Veteran’s cognitive and memory capabilities appeared intact. There were no psychotic processes detected. Rapport was guarded. The examiner determined that the Veteran’s psychiatric symptoms were productive of occupational and social impairment with reduced reliability and productivity. On VA examination in April 2018 the Veteran complained of impaired sleep, anxiety, nightmares and depression, as well as other symptoms previously noted on past examinations. The examiner determined that the symptoms of parasomnia, including nightmares and insomnia, are accounted for in the PTSD diagnosis. The Veteran use to live in his own apartment but lost GI Bill funds after graduation and became homeless. He lived in his car and stayed with friends until approximately a month earlier when he was provided VA transitional housing. His mother had passed away and he was not in good terms with his brother. Recreationally, he tried visiting friends, but was not involved in any social activities nor was he physically active. The Veteran reported no interest in dating. The Veteran had worked in a hotel from April 2016 to April 2017, but had to leave due to problems interacting with customers due to anxiety. He worked in a call center for a while, but felt vulnerable in an open space work setting. He was training at another call center, but did not anticipate staying. The Veteran was described as casually dressed. He had adequate eye contact. Speech and psychomotor activity were normal. Mood was dysphoric and affect constricted. Attention and memory were grossly intact. Thought process and content were linear and he was oriented times four. The examiner determined that the Veteran’s psychiatric symptoms were productive of occupational and social impairment with deficiencies in most area, such as work, school, family relations, judgment, thinking and/or mood. Subsequent treatment records show that the Veteran remained homeless and unemployed. Based on the evidence of record, the Board finds that effective November 11, 2014 the criteria for a 100 rating are not met, as the evidence does not reflect total social and occupational impairment. Total social impairment is not demonstrated. While he reported difficulties with interpersonal relationships at a work when he was employed, the Veteran related having maintained contact with friends whom he saw on a regular basis. With respect the Veteran’s employment history post-service discharge, the Board notes that while he has certainly experienced periods of unemployment during the appeal, it is also apparent that the Veteran was attending school most of the time and completed his Master’s degree. More importantly, none of the examiners who have examined the Veteran determined that his psychiatric symptoms were productive of total social and occupational impairment. In this regard, VA examiners, at most, found that the Veteran’s psychiatric disorder was productive of occupational and social impairment with deficiencies in most area, such as work, school, family relations, judgment, thinking and/or mood. In sum, although the Veteran had a couple of isolated reports of passive suicidal ideation, he denied plan or intent. While the Veteran complained of depression, memory and concentration problems, nightmares, impaired sleep, and irritability, the preponderance of the probative evidence is against a finding that the Veteran’s psychiatric symptomatology more nearly approximated total occupational and social impairment, such that a schedular 100 percent rating is warranted. The Board has considered the contentions from the Veteran regarding the severity of his psychiatric disorder; however, the objective clinical findings outweigh the Veteran’s subjective assertions as to whether he has total social and occupational impairment due to his psychiatric disorder. The Veteran’s symptoms reflect no more than moderate to moderately severe difficulty in social, occupational, or school functioning. As such, the 70 percent rating adequately compensates the Veteran for his symptomatology. In absence of evidence of total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place, or similar symptomatology of such frequency, duration, or severity, the Board finds that the criteria for a 100 percent rating have not been demonstrated. There is no evidence of memory loss for names of close relatives, or his own name. The Veteran has not been found to be disoriented. The evidence does not show persistent delusions or hallucinations. The evidence does not show gross inappropriate behavior or gross impairment in communication. His thought processes have not demonstrated gross impairment. Therefore, the Board finds that the evidence does not more nearly approximate the criteria for a rating of 100 percent and a rating greater than 70 percent is denied. Accordingly, a rating in excess of 70 percent rating is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a TDIU is remanded. Entitlement to a TDIU has been raised by the record. Specifically, VA treatment records in 2018 show that the Veteran is unemployed. Rice v. Shinseki, 22 Vet. App. 447 (2009). On remand, this aspect of his claim should be developed, to include providing the Veteran with appropriate notice regarding the requirements to substantiate a TDIU, associating any outstanding VA treatment notes with the claims file, and conducting an appropriate VA examination. The matters are REMANDED for the following action: 1. Provide a notice letter informing the Veteran of the evidentiary requirements necessary to substantiate a claim for TDIU. This letter should specifically request that the Veteran submit an Application for Increased Compensation Based on Unemployability, or a VA-Form 21-8940. 2. Obtain all updated VA treatment records for the Veteran. 3. Then, schedule the Veteran for a VA examination for the purpose of ascertaining the impact of his service-connected disabilities on employability. The examiner is specifically requested to describe the functional effects caused by the Veteran’s service connected PTSD, degenerative arthritis of the spine, right lower extremity radiculopathy and tinnitus. The examiner should also describe the impact that the Veteran’s PTSD, degenerative arthritis of the spine and tinnitus have on his employability. Any opinion expressed should be accompanied by supporting rationale. Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Azizi-Barcelo, Tatiana