Citation Nr: 1809023 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 08-19 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD prior to November 14, 2016. 3. Entitlement to basic eligibility for the award of Chapter 35 Dependents' Educational Assistance (DEA) benefits prior to November 14, 2016. 4. Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his former spouse ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to July 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2009 and March 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio and the Appeals Management Center in Washington, D.C., respectively. Jurisdiction over the appeal is currently with the RO in Nashville. In July 2010, the Veteran testified before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In January 2011 and December 2012, the Board remanded the appeal for further development. Because entitlement to a TDIU and basic eligibility for DEA benefits was raised in connection with his claim for a higher rating, these issues stem from the Veteran's claim for service connection that was received on April 3, 2007. 38 C.F.R. § 3.400(o) (2017); Rice v. Shinseki, 22 Vet. App. 447 (2009). In January 2018, the Veteran's attorney submitted pertinent evidence without a waiver of Agency of Original Jurisdiction (AOJ). However, since the Veteran's Form 9 was received after February 2, 2013, a waiver of review by the AOJ was not required. See § 501, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of the substantive appeal, unless the claimant or the claimant's representative requests in writing that the AOJ initially review such evidence). The issue of entitlement to service connection for a respiratory disorder is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's service-connected PTSD has more nearly approximated occupational and social impairment with deficiencies in most areas, including work, family relations, judgment, thinking, or mood. 2. Since December 16, 2007, the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD. 3. Since December 16, 2007, the Veteran's service-connected PTSD is shown to be of such a nature and severity to be permanent in nature and reasonably certain to continue throughout his lifetime. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for a 70 percent disability rating, but no higher, for service-connected PTSD are met, effective April 3, 2007. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU are met, effective December 16, 2007. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.16 (2017). 3. Resolving all reasonable doubt in the Veteran's favor, basic eligibility for DEA benefits under Chapter 35, Title 38, United States Code, is established, effective December 16, 2007. 38 U.S.C. §§ 3501, 5113 (2014); 38 C.F.R. § 3.807 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Pertinent Rules and Regulations Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the formula, a 50 percent rating is warranted where there is an occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereo-typed 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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. Id. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Ultimately in Mauerhan, the Court upheld the Board's decision noting that the Board had considered all of the veteran's psychiatric symptoms, whether listed in the rating criteria or not, and had assigned a rating based on the level of occupational and social impairment. Mauerhan, supra at 444. In Vasquez-Claudio v. Shinseki, F.3d 112, 117 (Fed. Cir. 2013), the Court also held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. The Court further held that, in assessing whether a particular disability rating is warranted requires a two-part analysis, including (1) an initial assessment of the symptoms displayed by the veteran and, if they are of the kind enumerated in the regulation and (2) an assessment of whether those symptoms result in the occupational and social impairment contemplated by that particular rating. See id. at 118. Indeed, considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). The Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score from 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Scores 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 from 61 to 70 indicate 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. Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). An assigned GAF score, like an examiner's assessment of the severity of a condition, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered but is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). In order to establish entitlement to TDIU due to service- connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2006); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 3.340(a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Total disability ratings for compensation may be assigned, in circumstances where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether a veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. Facts A November 2006 VA treatment record noted the Veteran's report of being ok; however, he reported only receiving four to five hours of sleep, and that he experienced increased nightmares because of Veterans Day week. He also stated he avoided watching television because they were showing war movies. He reported varying crying spells, but denied suicidal ideation, panic attacks, and hallucinations. He stated that he recently married. Upon examination, he was euthymic, calm, and cooperative. A January 2007 VA treatment record noted that he continued to experienced nightmares two to three nights a week, and that he was only sleeping four hours. His nightmares were triggered by events of the day, such as watching the news, and he tried to avoid triggers, if possible. He became tearful when discussing his own in-service experiences. In March 2007, the Veteran once again reported nightmares and sleeping only four hours, as well as some irritability. He reported increased stress due to his work. He was assigned a GAF score of 60. In a May 2007 statement, the Veteran indicated that he was experiencing nightmares and flashbacks related to his military service. A July 2007 VA treatment record noted that the Veteran was still experiencing sleep problems, including difficulty falling asleep and distressing dreams two to three times a week. The treatment provider noted that, while there was no change in the relationship between the Veteran and his wife, and that his relationship with one son was good, he had limited interaction with his other son and daughter. He described his mood as mostly good, and he denied any homicidal or suicidal ideation. A November 2007 VA treatment record noted that the Veteran's mood depended on a lot of things, and that it was not good at work. Work was reported as being stressful. His mood depended on a lot of things, including war-related movies and anything having to do with Veterans Day. He reported only three to four hours of sleep, along with a lot of tossing and turning. She stated that he had some suicidal thoughts, but that he would then think about his wife and coming home to her. In a January 2008 statement, the Veteran indicated that he had recently stopped working due to stress. He indicated that the situations around him were "closing in." In February 2008, the Veteran underwent a VA psychiatric consultation. He described his in-service experiences and reported ongoing distressing dreams related to these experiences and interrupted sleep. He stated that he did not like to go outside or being around others, and that he generally he avoided social situations. He also reported irritability and avoiding news. He said there were times when he would hear things that were not there, but review for manic symptoms was negative. The Veteran denied any intention of hurting himself or others, and there were no prior incidents of hurting himself or others. Upon examination, he was alert, oriented, calm, and cooperative. He became tearful when discussing his in-service experiences. There was no evidence of psychomotor agitation or retardation, and no evidence of hallucinations. His thought process was logical and goal directed. His general fund of knowledge was adequate, his insight was only partial, and his judgment was adequate. A March 2008 VA treatment record noted the Veteran's reports of anxiousness most days of the week. He continued to experienced bad dreams related to his military service. He denied any ideations of hurting himself or others. He displayed good hygiene, maintained good eye contact, and was cooperative. There was no evidence of psychomotor disturbances, his speech was normal, and he was alert and oriented. His mood was good, his affect was euthymic, and his thoughts were organized and goal directed. He denied suicidal and homicidal ideation, there was no evidence of hallucinations or delusions, and his judgment and insight were not impaired. He was diagnosed with anxiety, not otherwise specified (NOS), and was assigned a GAF score of 61. The following month, he reported that his disturbing dreams had decreased in frequency, but that he was still reminded of his in-service experiences and he watched his back all the time. His displayed good hygiene, maintained good eye contact, and was cooperative. There was no evidence of psychomotor disturbances, his speech was normal, and he was alert and oriented. His mood was good, his affect was euthymic, and his thoughts were organized and goal directed. He denied suicidal and homicidal ideation, there was no evidence of hallucinations or delusions, and his judgment and insight were not impaired. He was diagnosed with anxiety, NOS, and was assigned a GAF score of 61. In a July 2008 statement, the Veteran indicated that he stopped working on December 14, 2007. A July 2008 VA treatment record noted that the Veteran was still anxious, was only getting four to five hours of sleep, and was still experiencing nightmares and bad dreams. His wife reported that he tended to worry. He denied any ideations of hurting himself or others. Upon examination, he displayed good hygiene, maintained good eye contact, and was cooperative but fidgety. His speech was normal, and he was alert and oriented. His mood was anxious, his affect was congruent, and his thoughts were organized and goal directed. He denied suicidal and homicidal ideation, there was no evidence of hallucinations or delusions, and his judgment and insight were not impaired. He was diagnosed with anxiety, NOS, and PTSD, and was assigned a GAF score of 55. A September 2008 VA treatment record noted that the Veteran was doing better, and was not as worried as before. He reported problems with his stepson bothering and threatening him and his wife, but he stated that he was allowing the law to deal with it. He denied any ideations of hurting himself or others, unless necessary. Upon examination, he was alert and oriented. His mood was good, and his affect was full range. He denied suicidal and homicidal ideation, there was no evidence of hallucinations or delusions, and his judgment and insight were adequate. He was diagnosed with anxiety, NOS, and PTSD, and was assigned a GAF score of 60. An October 2008 VA treatment record noted that the Veteran was doing better, and was getting more sleep. He denied any ideations of hurting himself or others. Upon examination, he was alert and oriented. His mood was better, and his affect was euthymic. He denied suicidal and homicidal ideation, there was no evidence of hallucinations or delusions, and his judgment and insight were not impaired. He was diagnosed with anxiety, NOS, and was assigned a GAF score of 55. A January 2009 VA treatment record noted similar findings. An April 2009 VA treatment record noted that the Veteran was still having nightmares, was waking up at night, and was sometimes afraid to fall back asleep. The Veteran's wife reported that he was fidgety, and would sometimes thrash in his sleep, sometimes hitting her. He denied any ideations of hurting himself or others. Upon examination, he was alert and oriented with good hygiene. He was tapping his feet, which he had done for years, which was associated with possible anxiety versus mannerisms. His speech was normal, his mood was the same, and his affect was constricted. His thoughts were logical and goal directed. There was no evidence of self-injury or aggressive behavior, there was no evidence of hallucinations or delusions, and his judgment and insight were adequate. He was diagnosed with anxiety disorder, NOS, and was assigned a GAF score of 55. A June 2009 VA treatment record noted that the Veteran's nightmares had decreased on medication. Upon examination, he was alert and oriented. His mood was fine, and his affect was constricted. His thoughts were logical and goal directed. He denied suicidal and homicidal ideation, there was no evidence of hallucinations or delusions, and his judgment and insight were adequate. He was diagnosed with anxiety disorder, NOS, and was assigned a GAF score of 55. A September 2009 VA treatment record noted that the Veteran was doing better, but was still having nightmares. Upon examination, he was alert and oriented. His mood was fine, and his affect was euthymic. His thoughts were logical and goal directed. He denied suicidal and homicidal ideation, there was no evidence of hallucinations or delusions, and his judgment and insight were adequate. He was diagnosed with anxiety disorder, NOS, and was assigned a GAF score of 55. A November 2009 VA PTSD screening noted the Veteran's reports of nightmares; avoiding thoughts or situations related to his military service; being constantly on guard, watchful, or easily startled; and feeling numb or detached from others, activities, and his surroundings. The suicide screen was negative. A January 2010 VA treatment record noted that the Veteran was doing alright but was still experiencing nightmares related to his military service. The Veteran stated that his nightmares could have been triggered by the ongoing war and watching the news. He denied any ideations of hurting himself or others. Upon examination, he was alert and oriented. His mood was ok, and his affect was euthymic. His thoughts were logical and goal directed. There was no evidence of self-injury or aggressive behavior, there was no evidence of hallucinations or delusions, and his judgment and insight were adequate. He was diagnosed with anxiety disorder, NOS, and was assigned a GAF score of 55. An April 2010 VA treatment record noted that the Veteran was still experiencing nightmares. He reported an incident when he mistook his wife for someone else and aimed his gun at her. An April 2010 VA treatment record noted the Veteran's reports of PTSD related nightmares and recurrent dreams related to his military service. The Veteran reported that he had choked his wife on occasion during his nightmares. He denied suicidal ideation, and his mood was unchanged. Upon examination, he displayed good hygiene. His thought process was logical and goal oriented, and his speech was normal. His affect was full, and he denied homicidal and suicidal ideation. His insight, judgment, and reliability were deemed good. He was diagnosed with chronic PTSD, and was assigned a GAF score of less than 50. An August 2010 VA treatment record noted that the Veteran was still experiencing nightmares, and his wife reported that he was yelling in his sleep. His nightmares had been triggered by the return of soldiers. He reported that he recently unloaded his gun, and that he kept his bullets separate from his guns. His wife reported that he was paranoid, that he would look out of windows and doors, and that he would awake or get anxious with minor noises. He denied any ideations of hurting himself or others. Upon examination, he displayed good hygiene, and was calm and cooperative. There was no evidence of psychomotor agitation or retardation. He was slightly anxious, but was alert and oriented. His thought process was logical and goal oriented, and his speech was normal. There was no evidence of injurious or aggressive behavior. His affect was full, and his mood was anxious. He denied hallucinations and delusions, and his insight and judgment were partial. He was diagnosed with PTSD and personality disorder, NOS, with probable paranoid traits, and was assigned a GAF score of 55. An October 2010 VA treatment record noted that the Veteran was still experiencing nightmares, but that they were less intense. He denied any ideations of hurting himself or others. Upon examination, he displayed good hygiene and was calm and cooperative. There was no evidence of psychomotor agitation or retardation. He was slightly anxious, but was alert and oriented. His thought process was logical and goal oriented, and his speech was normal. There was no evidence of injurious or aggressive behavior. His affect was full, and his mood was ok. He denied hallucinations and delusions, and his insight and judgment were adequate. He was diagnosed with PTSD and personality disorder, NOS, with probable paranoid traits, and was assigned a GAF score of 55. An addendum noted that he was still avoiding people and places which reminded him of his in-service experiences. A January 2011 VA treatment record noted that the Veteran was still experiencing nightmares once a week, and that they were less intense. He stated that there were days when he was irritable and preferred to be by himself. He denied any ideations of hurting himself or others. Upon examination, he displayed good hygiene and was calm and cooperative. There was no evidence of psychomotor agitation or retardation. He alert and oriented. His thought process was logical and goal oriented. There was no evidence of injurious or aggressive behavior. His affect was full, and his mood was normal. He denied hallucinations and delusions, and his insight and judgment were adequate. He was diagnosed with PTSD and personality disorder, NOS, with probable paranoid traits, and was assigned a GAF score of 55. In February 2011, the Veteran underwent a VA examination. He reported that his nightmares had gotten better with medication, but that there were still times when he would get moody and that he had pulled a gun on his wife in the past. He reportedly got along well with his family, and he had friends, mostly from church, but he did not visit with them much because he preferred to stay home. There was no history of suicide attempts or assaultive behavior, but he did report occasional arguments with his brother. Upon examination, he was appropriately groomed, psychomotor activity and speech were unremarkable, and he was friendly and cooperative. He stated that his mood was good now, but that he could be easily upset and angered, and that he would walk off by himself. He also avoided big crowds. He was oriented, and his thought content was unremarkable. He reported pulling a gun on his wife a few times, but that he had recently locked up his weapons. He avoided people and situations that reminded him of his in-service stressor. He understood the outcome of his behavior, he displayed average intelligence, and he understood that he had a problem. Concerning his sleep problems, the Veteran reported nightmares once or twice a week, including waking up in a sweat, screaming, and/or his heart pounding. He once again reported that he pulled a gun on his wife as recently as a month ago, and also reported flashbacks to his in-service experiences. There was no evidence of hallucinations or inappropriate behavior. The examiner also noted occasional panic attacks, but no homicidal or suicidal ideation. The examiner stated that there were periods of violence, including choking and pulling a gun on his wife, but indicated that there was no intent to harm. He experienced problems with activities of daily living, including problems shopping, traveling, and driving, and that he avoided crowds. His immediate memory was mildly impaired, but his recent and remote memory were intact. Concerning the PTSD diagnostic criteria, the examiner noted recurrent and intrusive distressing recollections; recurrent distressing dreams; acting or feeling as though the event were recurring; intense psychological distress; and physiological reactions to internal or external cues related to his traumatic in-service experiences. He felt detached or estranged from others. He had problems falling or staying asleep, difficulty concentrating, experienced hypervigilance, and had an exaggerated startle response. These symptoms were found to cause a clinically significant distress or impairment in social, occupational, or other important areas of functioning. Other symptoms included a chronic sleep impairment and an inability to establish and maintain effective relationships. He was assigned a GAF score of 55. Concerning his functional ability, the examiner noted that he would be able to perform simple tasks where he could perform independently, but he would have a moderate difficulty interacting with coworkers and would be a potential danger to coworkers that reminded him of his in-service experiences due to his fixed paranoid delusions. In terms of occupational and social impairment, the examiner opined that the Veteran's PTSD manifested as occupational and social impairment with deficiencies in most areas, including thinking, family relations, work, and mood. An August 2011 VA treatment record noted that the Veteran's interaction with some people reminded him of his military service, so he coped with it by not going out. He was assigned a GAF score of 60 A November 2011 VA PTSD Screen noted that the Veteran was experiencing nightmares; that he avoided thoughts and situations associated with his stressor; that he was constantly on guard, watchful, or easily startled; and that he felt detached from others, activities, and his surroundings. He reported repeated disturbing memories, thoughts, or images; disturbing dreams; acting or feeling as though he was in the stressful event again; feeling upset by reminders of his stressor; having psychosocial reactions; avoiding situations or activities; a loss of interest in activities; feeling distant or cut off from people; emotional numbing; a sense of a foreshortened future; trouble falling or staying asleep; difficulty concentrating; being super alert or watchful; and feeling jumpy or easily startled A November 2011 VA treatment record noted that the Veteran was doing ok and was sleeping better. He denied any ideations of hurting himself or others. Upon examination, he was alert and oriented. He was appropriately groomed, and was calm and cooperative with no evidence of psychomotor agitation. His mood was normal, and his affect was relaxed. His thoughts were logical and goal directed. There was no evidence of self-injury or aggressive behavior, there was no evidence of hallucinations or delusions, and his judgment and insight were adequate. He was diagnosed with PTSD and personality disorder, NOS, with probable paranoid traits, and was assigned a GAF score of 60. A February 2012 VA treatment record noted that the Veteran was doing ok, and was sleeping better than before. He still experienced nightmares two to three times a week, but they were less intense and frequent than before. He was diagnosed with PTSD and personality disorder, NOS, with probable paranoid traits, and was assigned a GAF score of 60. In May 2012, the Veteran reported an increased frequency of nightmares, that he was quiet, isolated, and would engage in a verbal argument or would get irritated or upset. He was diagnosed with PTSD and personality disorder, NOS, with probable paranoid traits, and was assigned a GAF score of 50-55. A June 2012 VA treatment record noted the Veteran's complaints of nightmares, irritability and anger, and increased isolation. He also reported feeling sad , hopelessness, tearfulness, low energy, a loss of interest in activities, low motivation, and poor appetite. Concerning the PTSD diagnostic criteria, the examiner noted recurrent and intrusive distressing recollections; recurrent distressing dreams; acting or feeling as though the event were recurring; and intense psychological distress. He avoided thoughts feelings, and conversations; avoided activities; had a markedly diminished interest or participation in significant activities; felt detached or estranged from others; and had a restricted range of affect. He had problems falling or staying asleep; irritability or outburst of anger; difficulty concentrating; hypervigilance; and an exaggerated startle response. These symptoms were found to cause a clinically significant distress or impairment in social, occupational, or other important areas of functioning. He was pleasant and cooperative, his mood was dysthymic, and his affect was congruent. His speech was normal, and his thought process was logical and coherent with no evidence of a thought disorder. He was oriented, and denied any suicidal or homicidal ideation. His judgment and insight were good. He was assigned a GAF score of 55. An August 2012 VA treatment record noted that the Veteran experienced good and bad days, and that he would have bad dreams when he heard reports about the war or heard life flights carrying people from the local hospital. Upon examination, he was alert and oriented. He was appropriately groomed, and was calm and cooperative with no evidence of psychomotor agitation. His mood was described as having good and bad days, and his affect was anxious. There was no evidence of self-injury or aggressive behavior, there was no evidence of hallucinations or delusions, his judgment was adequate, and his insight was partial. He was diagnosed with PTSD and personality disorder, NOS, with probable paranoid traits, and was assigned a GAF score of 50-55. An October 2012 VA treatment record noted that the Veteran's nightmares had been less frequent and intense. He was diagnosed with PTSD and personality disorder, NOS, with probable paranoid traits, and was assigned a GAF score of 50-55. A January 2013 VA treatment record noted that the Veteran had problems discussing his in-service experiences with a PTSD and had an increase in symptomatology as a result. He was diagnosed with PTSD and personality disorder, NOS, with probable paranoid traits, and was assigned a GAF score of 50-55. A February 2013 VA treatment record noted that the Veteran's mood was appropriate and his affect was congruent. His wife reported episodes of violence and nightmares, including being awakened from a deep sleep with the Veteran choking her during a nightmare. He denied homicidal and suicidal ideation. The treatment provider noted increased moodiness, nightmares, intrusive thoughts, and isolative behavior. Depression was also noted. An October 2013 VA treatment record assigned a GAF score of 50. The Veteran reported increased anxiety, problems sleeping, and continued problems related to helicopters. A November 2013 VA treatment record noted that the Veteran reported some difficulty when he heard a helicopter: when he heard one during the day, he would be anxious; and when he heard one at night, he would be unable to go back asleep. Upon examination, he was alert and oriented. He was appropriately groomed, and his speech was normal. His mood was described as less anxious, and his affect was congruent. His thought process was logical, coherent, and goal-directed. There was no evidence of hallucinations, delusions, or suicidal or homicidal ideations, and his judgment and insight were fair. He was diagnosed with PTSD, and was assigned a GAF score of 57. A December 2013 VA treatment record noted that the Veteran was experiencing emotional distress. A January 2014 VA treatment record noted that the Veteran was doing okay. His wife stated that there were times when he would walk up and would not be able to fall back asleep. He reported an increase in symptoms while involved in group therapy, and his wife reported an incident when he heard a helicopter at church, ran outside, and locked himself in the trunk. The examiner noted a moderate level of anxiety and insomnia twice a week. He was assigned a GAF score of 57. An April 2014 VA treatment record noted the Veteran's report of anxiety, panic attacks, nightmares, avoidance, and irritability. The Veteran described examples of reexperiencing his stressor, avoidance, triggers, relationship issues, and hyperarousal. He stated that PTSD had affected his marriage, friendships, and self-esteem. He was diagnosed with PTSD; and major depressive disorder, recurrent, moderate. Upon examination, he was neat, cooperative, anxious, worried, fearful, and constricted. His speech and motor skills were within normal limits, and there was no evidence of homicidal or suicidal ideation or a thought disorder. In July 2014, the Veteran reported problems with anxiety, avoidance, hypervigilance, and depression. He was diagnosed with PTSD; and major depressive disorder, recurrent, moderate. Upon examination, he was neat; cooperative, but continued to use avoidance; and he was anxious, irritable, and depressed. constricted. His speech and motor skills were within normal limits, and there was no evidence of homicidal or suicidal ideation or a thought disorder. In January 2015, the Veteran reported that had a rough night previously as a result of a helicopter flying over his house. He indicated that he was unable to sleep and, if he did, he would experience nightmares. A March 2016 VA treatment record noted the Veteran's report of problems with helicopters and sirens. He said that, after hearing them, he felt as though he was back in Vietnam. He experienced one to two nightmares every two weeks, and crying spells one to two times per month. His overall mood was described as fair, but his ruminative thought pattern increased following the death of his first wife twelve years prior. The treatment provider noted that his pattern of decreased behavioral activation and social interactions appeared to be related to symptoms of anhedonia and amotivation secondary to depression. The Veteran then reported that, while he had a "pretty good" relationship with his children, he had not seen his daughter in eight years due to his isolation. The Veteran also noted that his marriage with his second wife was annulled because he she was still legally married to someone else. The treatment provider noted that testing revealed a moderate range of depression, a severe range of anxiety, and a clinical range of insomnia. In a November 2016 statement, the Veteran described the problems he experienced while working as a prison guard. He stated that the sirens would trigger his PTSD symptoms, including panic attacks, self-isolation, and flashbacks to his time in service. He also reported extreme stress when dealing with coworkers and inmates, including verbal arguments and avoidance behaviors. In December 2016, the Veteran underwent another VA examination. The examiner noted the diagnoses of PTSD and unspecified depression with anxious distress. Overall, the examiner opined that the Veteran's symptoms resulted in occupational and social impairment with reduced reliability and productivity. Concerning the PTSD diagnostic criteria, the examiner noted recurrent, involuntary, and intrusive distressing memories; recurrent distressing dreams; and intense psychological distress. He avoided distressing memories, thoughts, or feelings; and avoided external reminders. He experienced a persistent negative emotional state; had a markedly diminished interest or participation in significant activities; felt detached or estranged from others; and had a persistent inability to experience positive emotions. He experienced hypervigilance and sleep disturbances. These symptoms were found to cause a clinically significant distress or impairment in social, occupational, or other important areas of functioning. Other symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. The examiner also noted symptoms of feeling guilt and shame, withdrawal from people, flashbacks, and sleep problems. The examiner opined that the Veteran's PTSD caused a moderate impairment in social functioning that reduced his desire to be around others. The examiner noted that extreme noise, uncertainty/unpredictability, and other known and unknown triggers would further exacerbate his symptoms and result in further isolation and decompensation when under extreme stressful conditions. Therefore, the likelihood of him functioning in a work-like setting would be met with challenges, and stressful conditions would likely increase his frustration and serve as a stressor for a further increase of symptoms. In a January 2017 VA Form 21-4192, Request For Employment Information In Connection With Claim For Disability Benefits, the Veteran's former employer indicated that he stopped working on December 15, 2007. In January 2018, the Veteran's attorney submitted a private psychosocial functioning evaluation completed by Dr. E.T. who noted the Veteran's personal and work history, including working as a maintenance supervisor at a penitentiary where he would supervise the inmates' work. She noted that he stopped working there due to his inability to handle stress. Prior to this, he worked in transportation and as a carpenter. With regard to his current symptoms, Dr. E.T. noted that the Veteran had problems falling and staying asleep, and would sometimes wakeup with physical reactions such as sweating or feeling startled. He also experienced nightmares related to his military service, as well as daily intrusive and involuntary recollections and flashbacks. He would become extremely upset when around people, places, and/or events that reminded him of his military service, and would avoid them at all costs. He expressed problems with emotional numbness and a lack of feeling since his discharge, and he stated that he distrusted people and had no close friends. He also felt alienated from others because he felt they could not understand his experiences. He expressed a sense of doom, and he reported suicidal ideation on and off since his discharge. He also lost interest in pleasurable activities. Dr. E.T. noted the Veteran's problems with irritability and outbursts of anger, difficulty concentrating, hypervigilance, paranoia, and an exaggerated startle response. Other symptoms included generalized anxiety with occasional panic attacks, insomnia and other sleep disturbances, overwhelming feelings of sorrow with crying spells, withdrawal, and bouts of moderately severe to severe depression. Dr. E.T. opined that, from April 2007 to the present, the Veteran's symptoms had been severe, and that he had been unable to secure and follow a substantial gainful occupation from the time he retired until the present. Moreover, Dr. E.T. opined that the severity of the Veteran's symptoms associated with his PTSD resulted in occupation and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood. III. Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The discussion and analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). After a careful review of all the medical and lay evidence of record and after resolving all reasonable doubt in his favor, the most persuasive evidence regarding the overall severity of his social and occupational impairment due to his service-connected PTSD supports the award of a 70 percent rating, effective April 3, 2007, the day his claim for service connection was received. Although not dispositive, while some of the Veteran's GAF scores have ranged higher, he has consistently been assigned GAF scores that range between 50 and 60 during the appeal period. As noted above, while a GAF score of 51 to 60 indicates only moderate symptoms or moderate difficulty in social, occupational, or school functioning, the GAF scores of 50 indicate serious impairment in social and occupational functioning. Overall, the Board finds that the Veteran's PTSD has been manifested by symptoms such as the following: intermittent suicidal ideation; irritability and angry outbursts; intrusive memories, including flashbacks; sleep disturbances, including insomnia and nightmares; avoidance behaviors and social isolation; depressed mood; problems with familial relationships; feelings of detachment; hypervigilance; anxiety and panic attacks; a loss of interest in activities; an exaggerated startle response; hyperarousal; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances. Collectively, these symptoms are of the type, extent, severity, and/or frequency that more nearly approximate occupational and social impairment in most areas of the Veteran's life, including work, family relations, judgment, thinking, or mood. Although the December 2016 VA examiner concluded that the Veteran's PTSD resulted in no more than occupational and social impairment and impairment with reduced reliability and productivity, the criteria for only 50 percent, the February 2011 VA examiner and Dr. E.T. both concluded that the Veteran's symptoms resulted in occupational and social impairment in most areas of his life, including work, family relations, judgment, thinking, or mood. While the evidence of record indicates that the severity of the Veteran's symptomatology fluctuated during the appeal period, warranting the possible assignment of staged ratings, the Board finds that the frequency of the fluctuations gives rise to a serious question as to whether the Veteran's symptomatology had actually improved. Thus, the Board finds that the assignment of a 70 percent rating throughout the appeal period is warranted. 38 C.F.R. § 4.7 (2017). In assessing the severity of the Veteran's PTSD, the Board has considered the competent lay assertions regarding the symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). With regard to the criteria for a 100 percent rating, there is no evidence showing that his PTSD was manifested by such symptoms like spatial disorientation; gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Instead, the Board notes that he has been able to clearly communicate during each of his VA treatment sessions. Furthermore, he was able to communicate the relevant information pertinent to his mental health history and provide a detailed summary of his symptoms to VA examiners, VA treatment providers, Dr. E.T., and in lay statements in connection with is claim. Furthermore, the record does not suggest that the Veteran suffered from hallucinations, delusions, or that he posed a persistent threat to himself or others. The evidence is also against a finding that he is unable to perform activities of daily living, that he requires personal monitoring for safety, or is incapable of maintaining personal hygiene. To the contrary, his VA treatment records note that he is able to independently perform activities of daily living, he was consistently noted to have an appropriate appearance, and both VA examiners noted that he was able to manage his financial affairs. See, e.g., February 2011 VA Examination Report, December 2016 VA Examination Report. In addition, total social and/or occupational impairment was not demonstrated because, while his relationship with his daughter was strained, he was still able to maintain a relationship with his son. Therefore, a 100 percent disability rating is not warranted for any period pertinent to this appeal. 38 C.F.R. § 4.130. The Board emphasizes that, in analyzing this claim, the symptoms identified in the Rating Formula have been considered not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant a higher rating for PTSD. See Mauerhan, supra. While he has not demonstrated all of the symptoms associated with the 70 percent rating criteria, the Board acknowledges that not all of the demonstrative symptoms must be shown to warrant a higher rating. With regard to the claim for a TDIU, in a July 2017 rating decision, entitlement to a TDIU and basic eligibility for DEA benefits was granted effective November 14, 2016, the date the Veteran's formal claim for a TDIU was received. Prior to November 14, 2016, the Veteran was service-connected for the following disabilities: PTSD, now rated as 70 percent disabling, effective April 3, 2007; a skin disorder, rated as noncompensable from April 3, 2007, and as 30 percent disabling from March 21, 2014; tinnitus, rated as 10 percent disabling, effective August 13, 2013; and bilateral hearing loss, rated as noncompensable, effective August 13, 2013. His combined disability ratings are now 70 percent, effective April 3, 2007; and 80 percent, effective March 21, 2014. See 38 C.F.R. § 4.25 (2017). Therefore, since April 3, 2007, he met the schedular threshold criteria for a TDIU as defined in 38 C.F.R. § 4.16(a), and the remaining inquiry is whether he is unable to secure or follow substantially gainful employment due solely to his service-connected disabilities. Based on the evidence of record, the Board finds the Veteran's service-connected PTSD rendered him unemployable since December 16, 2007, the day after he stopped working. As noted above, in a January 2017 VA Form 21-4192, his former employer indicated that he stopped working on December 15, 2007. As early as March 2007, the Veteran indicated that he was experiencing increased stress due to work and, in January 2008, the Veteran reported that he stopped working sue to that stress. The February 2011 VA examiner concluded that he would have a moderate difficulty interacting with coworkers and would be a potential danger to coworkers that reminded him of his in-service experiences due to his fixed paranoid delusions. The December 2016 VA examiner noted that extreme noise, uncertainty/unpredictability, and other known and unknown triggers would further exacerbate his symptoms and result in further isolation and decompensation when under extreme stressful conditions. Thus, the examiner concluded that the likelihood of that the Veteran could function in a work-like setting would be met with challenges, and stressful conditions would likely increase his frustration and serve as a stressor for a further increase of symptoms. Similar findings and conclusions were noted by Dr. E.T. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66, 70 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). Moreover, the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, and after resolving all reasonable doubt in his favor, the Board finds that the Veteran's service-connected PTSD rendered him unable to secure and follow a substantially gainful occupation consistent with his education background and employment history as of December 16, 2007, the day after he stopped working. Therefore, entitlement to a TDIU is granted, effective December 16, 2007. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Basic Eligibility for DEA Benefits Prior to November 14, 2016 Basic eligibility for DEA benefits under Chapter 35, Title 38, United States Code exists if the Veteran has a service-connected total disability that is permanent in nature. 38 U.S.C.A. §§ 3500, 3501. A total disability may be assigned where a veteran's service-connected disabilities are rated 100 percent disabling under the Rating Schedule, or if a veteran is unemployable due to his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. As decided herein, a TDIU has been awarded as of December 16, 2007, because the Veteran's service-connected PTSD rendered him unable to secure and follow a substantially gainful occupation consistent with his education background and employment history as of that date. The pertinent evidence of record indicates that such his service-connected PTSD is permanent in nature and is reasonably certain to continue throughout his lifetime. Therefore, resolving all reasonable doubt in his favor, the Board finds that the Veteran meets the basic eligibility requirements for DEA benefits. Accordingly, the Board finds that eligibility for DEA benefits has been established as of December 16, 2007. ORDER An initial disability rating of 70 percent, but not higher, for service-connected PTSD is granted, effective April 3, 2007, subject to the laws and regulations governing the payment of monetary benefits. A TDIU is granted, effective December 16, 2007, subject to the laws and regulations governing the payment of monetary benefits. Basic eligibility for DEA benefits is granted, effective December 16, 2007, subject to the laws and regulations governing the payment of monetary benefits. REMAND In a June 2007 VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), the Veteran indicated that he received treatment from the VA Medical Center in Jackson, Mississippi, from the early 1990s to the present for his lungs. Despite repeated attempts, the AOJ was only able to obtain records from January 2003 onward from that facility. In the January 2011 and December 2012 remands, the Board determined that further development was necessary to obtain these identified records. Despite repeated attempts, the AOJ was ultimately unavailable to obtain these records. Multiple attempts showed that there were no appointments at the Jackson VA Medical Center in the 1990s, and his first appointment thereafter was in January 2003. See July 2017 Email Correspondence. However, in an October 2017 statement, the Veteran's attorney indicated that he received treatment from the VA Medical Center in Murfreesboro, Tennessee, from 1990 to 2002. Because any outstanding VA treatment records from the VA Medical Center in Murfreesboro, Tennessee, dated from 1990 to 2002, if procured, could bear on the outcome of his claim on appeal, efforts must be made to obtain them. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). Additionally, the Veteran should once again be given the opportunity to identify any outstanding pertinent records. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's electronic claims file any outstanding VA treatment records relevant to his claim, to specifically include treatment records from the VA Medical Center in Murfreesboro, Tennessee, dated from 1990 to 2002. 2. Request that the Veteran identify any non-VA healthcare provider who treated him for his respiratory disorder and, after obtaining any necessary authorization, obtain all identified records not previously of record. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. Thereafter, and after any further development deemed necessary, readjudicate the claim for service connection for a respiratory disorder. If the benefit sought on appeal is not granted, the Veteran and his attorney should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the appeal should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran 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 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. §§ 5109B, 7112 (2014). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs