judge_norm: MARK F HALSEY

disposition: granted

condition: eye

benefit: tdiu

text:
Citation Nr: 1320000
Decision Date: 06/20/13    Archive Date: 07/02/13

DOCKET NO.  06-24 819	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York

THE ISSUES

Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to November 9, 2009, and in excess of 70 percent from November 9, 2009, to March [redacted], 2011.

REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney at Law

ATTORNEY FOR THE BOARD

Bridgid D. Cleary, Counsel

INTRODUCTION

The Veteran served on active duty from January 1955 to December 1958 and from August 1966 to August 1968.  The Veteran died on March [redacted], 2011.  At the time of his death, this claim was pending.  The appellant is the Veteran's surviving spouse.  Pursuant to a March 2013 decision, she has been determined to be a proper substitute in this appeal.  See 38 U.S.C.A. � 5121A.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO).

In September 2009, the Board remanded this case for further development.

In a February 2010 decision, the Board granted an increased evaluation of 70 percent, but no more, for PTSD, effective November 9, 2009. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  The Veteran, through his attorney, and the Secretary of Veterans Affairs submitted a Joint Motion for Remand in August 2010.  The Court granted the motion, vacated the February 2010 Board decision, and remanded the case to the Board for further appellate review.

Under Rice v. Shinseki, 22 Vet. App. 447 (2009), a total disability rating based on individual unemployability (TDIU) is considered an element of rating claims when raised by the record.  In this case, this issue of TDIU has been raised and will be addressed below.  See e.g., private psychologist opinion dated November 2010.

FINDINGS OF FACT

1.  Throughout the rating period on appeal, the Veteran experienced deficiencies in most areas, caused by symptoms including sleep problems, suicidal ideation, tearfulness, irritability, and social isolation.

2.  The evidence of record shows that the Veteran was unable to secure or follow substantially gainful employment as a result of his service-connected PTSD throughout the rating period on appeal.

CONCLUSIONS OF LAW

1.  Prior to November 9, 2009, the criteria for a rating of 70 percent, but no higher, for PTSD have been met.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. �� 4.1, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2012).

2.  As of November 9, 2009, the criteria for an initial evaluation in excess of 70 percent for PTSD have not been met.  38 U.S.C.A. �� 1155, 5107 (West 2002); 38 C.F.R. �� 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012).

3.  The criteria for a total disability rating based on individual unemployability due to service-connected PTSD have been met.  38 U.S.C.A. �� 5108, 5110, 7104 (West 2002); 38 C.F.R. �� 3.400, 20.1103 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. � 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  The Board finds that the required notice was met through correspondence sent to the Veteran during the course of the claim.

VA also has a duty to assist a claimant in the development of the claim.  This duty includes assisting him/her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.  As the appellant is the properly substituted claimant, these duties extend to her as well.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed.  The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the claims file.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

In compliance with the Board's September 2009 remand, VA provided the Veteran with a medical examination in November 2009.  This examination contained information needed to rate the disability at issue.  Indeed, the examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation.  The examiner then offered an opinion regarding which of the Veteran's mental health symptoms could be attributed to his service-connected PTSD, accompanied by a rationale.  Therefore, this examination is adequate for VA purposes.  Thus VA has complied with the September 2009 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Analysis

The Veteran was originally granted service connection for PTSD in a July 2003 rating decision.  This rating decision awarded a 10 percent disability evaluation, effective November 2, 1998.  In the December 2005 rating decision on appeal, that 10 percent initial evaluation was increased to 30 percent.  The Veteran appealed that evaluation.  During the pendency of this appeal, this evaluation was increased to 50 percent, and then to 70 percent from November 9, 2009.  See November 2009 and April 2010 rating decisions; February 2010 Board decision.

Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. � 1155.

Posttraumatic stress disorder (PTSD) is evaluated under the General Rating Formula for Mental Disorders.  See 38 C.F.R. � 4.130.  Under that General Rating Formula, a 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. � 4.130, Diagnostic Code 9411.

The next higher evaluation of 70 percent 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 worklike setting); inability to establish and maintain effective relationships.  Id.

A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; 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.

Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. � 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Accordingly, the evidence considered in determining the level of impairment under � 4.130 is not restricted to the symptoms provided in the diagnostic code.  Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association:  Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV).  Id.

The Global Assessment of Functioning (GAF) Scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994).  The GAF Scale score is based on all of the Veteran's psychiatric impairments.  A GAF Scale score of 21 to 30 indicates behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation), or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends).  A GAF Scale score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant), or an major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work).  A GAF Scale score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  A GAF Scale score of 51 to 60 represents 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 coworkers).  A 61 to 70 GAF Scale score indicates some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships.

The Veteran had three psychiatric admissions at a VA hospital in May, July and August of 1998.  During these admissions, the Veteran was diagnosed with depressive disorder, (see May and July 1998 admissions), dysthymia with anxiety, and a personality disorder, with dependent features, (see August 1998 admission), but was not diagnosed with PTSD.  These records note the Veteran's suicidal ideation at the time of his admissions, but not intent.  At the time of discharge, he was not a danger to himself or others.  The May 1998 discharge summary noted a global assessment of functioning (GAF) score of 35 on admission and 60 at discharge.  Similarly, the August 1998 discharge summary noted a global assessment of functioning (GAF) score of 35 on admission and 55 at discharge.

An October 1998 psychiatric evaluation diagnosed the Veteran with PTSD, and major depressive disorder, noting that his thought processes were confused at times, with his wife noting that he became disoriented at times.  His affect was tense and flat, and his attention and concentration were mildly impaired due to emotional problems.  His recent and remote memory skills were mildly impaired, and his insight and judgment were fair.  The examiner noted that the Veteran no longer socialized, and had not been employed since July 1998.

In a statement dated October 1998, the Veteran reported symptoms of nervousness, depression, sleep problems, and fear of harming himself.

VA treatment records from November 1998 note some improvement of his symptoms.  He was no longer actively suicidal.

A November 1998 psychiatric evaluation noted that the Veteran's appearance, attitude and behavior were extremely depressed and irritable, his thought processes and speech were slowed, and his attention and concentration were impaired.  He had flashbacks and nightmares.  He had suicidal ideation, but not intent.  The Veteran denied hallucinations and delusions.  His mood and affect were depressed.  His memory was intact.  His insight and judgment were fair.  The Veteran's social functioning was impaired.  The Veteran had difficulty focusing, and the examiner noted that he was not able to handle even low stress type of work without decompensating due to the increase in depression, difficulty focusing, and inattention and slow thought process.  This evaluator diagnosed the Veteran with PTSD.

The Veteran underwent a VA examination in March 1999.  The Veteran's speech was of a normal tone and speed, and his thoughts were logical and coherent.  The examiner noted that the Veteran was extremely tearful and upset during the interview and had to stop several times to regain his composure.  His mood was generally depressed and his affect was appropriate to his mood disorder.  The Veteran admitted to suicidal ideation but denied plan or intent.  He denied any hallucinations, delusions or symptoms of a thought disorder.  Regarding occupational impairment, at this examination, the Veteran stated that he last worked for the highway department but was forced to leave in 1998 when he became too depressed and nervous to continue working.  In terms of his social impairment, the Veteran noted that although he previously enjoyed a number of activities such as hunting and bowling, he no longer engaged in these hobbies.  He noted that he spends most of his time at home and rarely socialized with the friends he formerly had.  The Veteran and his wife had been married for 38 years and had three children.  One son, his wife, and their two children lived with the Veteran and his wife.

The examiner diagnosed the Veteran with recurrent major depression and PTSD, assigning a GAF score of 50, noting that the Veteran's highest GAF for the past year was 70.  The examiner noted that the Veteran's primary problem was depression, and stated that it was important to note that his family had a strong history of mood disorders with two family members committing suicide.  However, the examiner noted that it was difficult to determine if the depression was service connected because, although the Veteran stated that it began while he was in Vietnam, he did not seek treatment until 1990.  The examiner also noted that PTSD had existed for a number of years and had affected the Veteran on a mild to moderate level, and noted that his PTSD was causing additional impairment on top of the depression.

VA treatment records from July 1999 note that the Veteran's mood had improved, as had his relationship with his family.  See also August 1999 VA Outpatient Treatment Record.

VA treatment records from October 1999 note that the Veteran's presenting symptoms for depression are an inability to get along with employment authorities.  This psychiatrist noted that the Veteran's severe depression and anxiety were so pervasive that PTSD symptoms were frequently missed.  The Veteran's symptoms were worsening with age and over the prior two years had become exacerbated.  The Veteran was incapable of holding down a job and suffered from an all-pervading social phobia.

The Veteran underwent a VA PTSD examination in April 2002.  At this examination, the examiner, diagnosed the Veteran with mood disorder, not otherwise specified, noting that this was his primary diagnosis, but noted a secondary diagnosis of chronic PTSD, stating that the Veteran's PTSD symptoms accounted for 25 percent of his overall mental dysfunction.  The examiner assigned a global assessment of functioning (GAF) score of 48, indicating serious impairment of functioning.  See also, DSM-IV.  The examiner found that the Veteran's speech was logical and focused at all times, and noted that he was able to articulate his thoughts.  The Veteran described his mood as depressed, noting that he could be emotionally labile.  His wife reported that the Veteran would have crying spells without cause, and noted that he became agitated and easily angered with minimal environmental triggers; however, he denied being aggressive or violent.  The Veteran denied compulsions, but reported anxiety attacks.  The Veteran noted that he experienced serious suicidal ideations in 1998, which prompted his psychiatric hospitalizations, but he denied ever actually attempting to kill himself, and stated that he has not experienced suicidal ideation since 1998.  Overall, the examiner noted that the Veteran was seriously impaired in his functioning, noting that he suffered from chronic sleep disturbance, depressed mood, mood instability, history of psychiatric hospitalization, and an inability to maintain employment.  The Veteran had been married for 41 years and reported a good relationship with his wife, each of their three children.  While he reported socializing with friends in the past, he stated that at the time of this examination, he mostly associated with his family, including his wife, children, and grandchildren.  The Veteran had not worked or looked for work since his hospitalization for severe depression in 1998.

Outpatient treatment records from the Albany VA Medical Center (VAMC) dated in January 2005, April 2005, and September 2005, noted that the Veteran's PTSD was stable.

In his January 2006 statement, the Veteran reported symptoms of poor mood, memory problems, and constantly being upset with himself.

Outpatient treatment records dated January 2006 note stable PTSD and a GAF score of 65, which indicates some mild symptoms, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, having some meaningful interpersonal relationships.  See DSM-IV.

Outpatient treatment records dated April 2006 note a GAF score of 60, which represents moderate symptoms or moderate difficulty in social, occupational, or school functioning.  See DSM-IV.

The Veteran underwent another VA PTSD examination in April 2006, conducted by the same examiner who conducted the 2002 examination.  At this examination, the examiner diagnosed the Veteran with bipolar disorder and PTSD, and assigned a GAF score of 48, noting serious impairment of functioning.  On examination, the Veteran displayed good grooming and hygiene.  He spoke in a clear voice and tone at an average rate of speed and his speech was logical and focused.  He was oriented for person, place, time, and situation, understood the questions asked, and did not display any impairment in short or long-term memory.  When asked about his mood, the Veteran noted that his typical mood was depressed and stated that he had an unstable mood, with bouts of crying and easily agitated.  He was not violent and had no history of arrests.  He denied visual or auditory hallucinations, and paranoia.  The Veteran reported a history of suicidality, culminating in three hospitalizations in 1998, and noted that he had experienced sporadic ideation since that time, but without threats or intent.  He was not actively suicidal.  The Veteran also reported chronically poor sleep, including nightmares.

The Veteran had been married for 45 years and got along well with his wife.  He reported that he had three children with whom he had regular contact and good relationships, including one son and his children who lived with the Veteran and his wife.  The Veteran noted that he used to have friends but now only socialized with his children and grandchildren.  He reported enjoying archery and camping as hobbies, as well as hunting and fishing with his children and grandchildren.

The Veteran worked for 28 years for a construction company as a mason.  The company went out of business and then he went to work for a highway department in 1992, until 1998 when he had to quit working as a result of severe depression.  He applied and received social security disability as of 1999, and has not worked since.  The examiner noted that clearly the Veteran's mental disorders have interfered with his occupational functioning, and caused him to take early retirement, retiring at only 61 years old.

In summary, the examiner noted that the Veteran continued to meet the criteria for both diagnoses; however, bipolar disorder was the Veteran's primarily disabling condition.  The examiner stated that there was no doubt that suffering from bipolar disorder had made it more difficult for the Veteran to recover from PTSD.  It was the examiner's opinion that the Veteran's PTSD accounted for as much as 25 percent of his impairment in functioning.  However, he noted that this was difficult to accurately assess given that the bipolar disorder was a disabling mental disorder.  Overall, the examiner noted that the Veteran was seriously impaired in his overall functioning with a history of sleep disturbance, chronic depression, and taking early retirement due to his mental health.

VA treatment records from May 2006 note symptoms of dysthymia with anxiety, some improvement, but no ambition left and poor motivation.  VA treatment records from June 2006 note symptoms of severe depression and fear over the previous few days.

VA treatment records from July 2006 note that on admission the Veteran was alert, oriented, verbal, cooperative, coherent, and relevant.  His speech was within the normal range.  His affect was blunt, but congruent.  His mood was tense and irritable.  No overt thought disorder was noted.  He denied hallucinations and delusions.  His abstract thinking was fair and his cognitive functioning was intact.  His insight was weak, but his judgment was not impaired.  After treatment, the Veteran's affect was improved and described as brighter.  His GAF score was recorded as 45 on admission and 50 at discharge.  Both scores indicate serious symptoms or any serious impairment in social, occupational, or school functioning.  See DSM-IV.

An August 2006 VA treatment entry noted that the Veteran was emotionally unstable with PTSD.

The Veteran underwent a VA examination in November 2009.  At this examination, the examiner noted that the Veteran only slept a few hours per night due to combat related nightmares, and stated that he had intrusive thoughts about Vietnam.  The examiner noted that the Veteran had difficulty expressing his feelings to others, and was irritable, short-tempered, and easily distracted, often losing his train of thought.  The examiner noted that the Veteran was wary of others, often scanning his environment, and stated that he was very agitated by loud unexpected noises.  The Veteran experienced these symptoms on a daily basis and rarely went a day without experiencing these symptoms, noting that his symptoms were severe.  On examination, the Veteran was well groomed and neatly attired, indicating that he had no difficulty maintaining basic life skills.  He had some difficulty making eye contact with the examiner, which improved during the course of the examination.  The Veteran spoke in a normal voice, and his rate of speech was within normal limits.  He was not tangential in speech and made no unusual utterances.  The examiner noted that the Veteran's affect was anxious and his mood was tense and sad.  The Veteran displayed a moderate impairment of short-term memory but his long term-memory was intact.  The Veteran denied the presence of both visual and auditory hallucinations, and the examiner noted that no delusional material was elicited from the Veteran.  He reported vague thoughts of suicide from time to time, but stated that he would never attempt suicide because he knew it would be devastating for his wife.  The Veteran denied the presence of homicidal ideation, and denied any ritualistic behaviors that would negatively impact his day-to-day functioning.  The examiner noted that the Veteran appeared anxious throughout the interview, and typically sat on the edge of his chair and vigorously rubbed his hands together when speaking.  The examiner noted that the Veteran became depressed and tearful when he talked about how difficult he found it to express his feelings to his wife and children.

The Veteran reported that his wife of 49 years was his best friend and that he had difficulty expressing his feelings for her.  He also reported that he was much closer to his three children now that they were adults.  He had no close friends and, ever since his lung surgery in 2007, he felt nervous in public.  He no longer attended meetings at his local veterans organization.  The Veteran had lost interest in his hobbies and spent the majority of his time by himself brooding and watching television.  The examiner found that the Veteran was a very socially isolated individual with no emotional connection to anyone other than his wife and that the Veteran's severe deficit in social functioning was attributable to his PTSD.

The Veteran had not worked in ten years due to high levels of anxiety and anger.  The examiner noted that the Veteran displayed a severe deficit in vocational functioning and would not be returning to work.  The examiner attributed the Veteran's severe deficit in vocational functioning to his PTSD.

This examiner diagnosed the Veteran with severe, chronic, delayed PTSD with panic attacks and assigned a GAF score of 40, which indicates some impairment in reality testing or communication or a major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood, noting that the Veteran's highest GAF in the past year was also 40.

Lastly, the examiner noted that the prognosis for the Veteran was not good.  The Veteran was experiencing an increase in anxiety since his last examination and it was likely that this increase in anxiety was related to breathing difficulties since his surgery, noting that it was common for individuals with PTSD to experience exacerbations in their symptoms after surgical procedures.  The examiner noted that it was not possible to parcel out the individual effects of PTSD and the Veteran's post-surgical complications from lung surgery from his GAF score.

In an opinion dated November 2010, a private psychologist opined that the Veteran had very significant social impairment with deficiencies in family relations, judgment, and mood since at least November 1998.  Likewise, this psychologist found that the Veteran was unable to secure and follow substantially gainful employment since November 1998.

The Board acknowledges that the Veteran's mental health symptoms have been attributed to both his service-connected PTSD and his non-service connected depression.  When it is not possible to distinguish disability caused by service-connected conditions from that caused by a non-service-connected disorder, the entire disability is treated as if caused by service connected conditions.  Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).  To the extent that the medical evidence did not sufficiently clarify which symptoms were attributable to which disability, they have been considered as part of his PTSD profile.  The April 2002 examiner's assertion that the Veteran's PTSD accounts for 25 percent of his mental dysfunction is not useful for parsing out the specific symptoms attributable to each disability.

Based on the above, the Veteran's PTSD most nearly approximates the criteria for a 70 percent evaluation throughout the rating period on appeal.  Specifically, his symptoms of sleep problems, suicidal ideation, tearfulness, irritability, and social isolation cause occupational and social impairment with deficiencies in work, mood, and family relations.  See 38 C.F.R. � 4.130, Diagnostic Code 9411.   Overall, the record reveals evidence of occupational and social impairment with deficiencies in most area, including work, family relations, and mood, due to the symptoms discussed above.  In terms of social impairment, the evidence shows that the Veteran experiences a severe deficit in social functioning with no close friends and difficult expressing himself to others.  The Veteran was found to be very socially isolated with no emotional connection to people other than his wife.  See November 2009 VA examination.  As expounded upon below, the Veteran's PTSD symptoms resulted in a severe deficit in vocational functioning.   Thus, the Board determines that a 70 percent evaluation is appropriate for the entirely of the claim period.

A higher evaluation of 100 percent is not warranted as the record does not show total occupational and social impairment.  The Veteran did not display symptoms indicative of a 100 percent rating (such as gross impairment in thought processes or communication, persistent delusions, or hallucinations, persistent danger of hurting oneself or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name).  Instead, the Veteran was consistently alert and fully oriented; his thought process and communication were not grossly impaired; and he denied any preoccupations, obsessions, delusions, visual hallucinations, or homicidal ideations.  His insight and judgment were intact.  Despite his history of suicidal ideation, the Veteran was consistently found to lack suicidal intent.  Significantly, he reported a generally good relationship with his wife of 50 years and his children, evinced by his ability to live with his wife, his son, and his son's family.  While those relationships at times were strained, his ability to maintain them belies a finding of total social impairment.  Moreover, while noting significant impairment, the medical evidence of record does not contain a finding of total social impairment.

In sum, the record does not support a finding that the Veteran's PTSD has caused total occupational and social impairment.  In sum, taking into account all of the medical evidence of record, the Board finds that the Veteran's PTSD most nearly approximates the criteria required for a 70 percent rating throughout the appeals period.  The Board determines that the evidence likely supports an award of a 70 percent rating, but no more, prior to November 9, 2009, and is against the assignment of a rating in excess of 70 percent for the Veteran's PTSD.  38 C.F.R. � 4.7.  Thus, a 70 percent evaluation is warranted throughout the claim period.

The Board must also determine whether the schedular evaluation is inadequate, thus requiring that VA refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. � 3.321(b)(1).

An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture.  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).

If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization.  Id. at 115-116.  When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. � 3.321(b)(1); Thun, 22 Vet. App. at 116.

In this case, the schedular evaluation is not inadequate.  An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability, such as additional social and/or occupational impairment, but the medical evidence reflects that those manifestations are not present in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder.  As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order.

As discussed above, the Veteran raised the issue of TDIU in conjunction with his claim for a higher evaluation for his service-connected PTSD.  See Rice, 22 Vet. App. 447.  The above decision awards a 70 percent evaluation for PTSD for the entirety of the claims period; therefore the Veteran has likewise met the threshold percentage requirements for TIDU for the entirety of the claim period.  See 38 C.F.R. � 4.16(a) (setting the schedular requirements for TDIU consideration at a disability evaluation of 60 percent or more for a single service connected disability).

The issue becomes whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected PTSD for this period.  38 C.F.R. �� 3.340, 3.341, 4.16.  In this case, the Veteran did not participate in gainful employment at any point during the claim period.  Indeed, the medical evidence of record repeatedly showed that the Veteran was unemployable due to his mental health problems.  Again, the Board is mindful of the Veteran's service-connected and non-service-connected psychiatric disabilities.  The November 2010 private psychologist opined that the Veteran was unemployable due to his PTSD.  While the prior medical evidence attributes the Veteran's unemployability to his non-service connected depression and anxiety, the Board finds no other opinion specifically addressing the impact of the Veteran's PTSD on his employability.  Thus, the Board finds that the preponderance of the evidence is in favor of finding that the Veteran's service-connected PTSD likely warranted a TDIU evaluation for the entirety of the claim period.  See 38 U.S.C.A. � 5107(b).

ORDER

Subject to the provisions governing the award of monetary benefits, entitlement to a disability rating of 70 percent prior to November 9, 2009, for PTSD is granted.

Entitlement to a schedular rating higher than 70 percent for PTSD is denied.

A total disability rating based on individual unemployability due to service-connected PTSD is granted.

_______________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs