Citation Nr: 0510348 Decision Date: 04/11/05 Archive Date: 04/21/05 DOCKET NO. 02-19 986A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a higher initial rating than 10 percent for post-traumatic stress disorder (PTSD) for the period prior to May 10, 2002. 2. Entitlement to a higher initial rating than 30 percent for PTSD for the period beginning May 10, 2002, through August 29, 2002. 3. Entitlement to a higher initial rating than 50 percent for PTSD for the period beginning August 30, 2002. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). 5. Entitlement to an earlier effective date than May 10, 2002, for assignment of a 30 percent rating for PTSD. REPRESENTATION Appellant represented by: Antonio E. Bendezu, Attorney at law ATTORNEY FOR THE BOARD W. R. Steyn, Counsel INTRODUCTION The veteran had active military service from June 1967 to June 1969. This appeal arises before the Board of Veterans' Appeals (Board) from September 2001, August 2002, and November 2002 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. By a September 2001 rating decision, the RO granted service connection for PTSD and assigned a 10 percent rating. By an August 2002 rating decision, the RO increased the veteran's initial rating for PTSD to 30 percent for the period beginning May 10, 2002. By a November 2002 rating decision, the RO increased the veteran's initial rating for PTSD to 50 percent beginning August 30, 2002, and denied a TDIU. It is pointed out that in a December 2002 document, the veteran's representative framed one of the issues as "Entitlement to an increased evaluation for post-traumatic stress disorder from an earlier effective date, current (sic) fifty (50%) percent from August 30, 2002." It is pointed out that since the veteran is also disagreeing with the initial ratings assigned for his PTSD (10% for the period prior to May 10, 2000; 30% for the period beginning May 10, 2002, through August 29, 2002; and 50% for the period beginning August 30, 2002), disagreeing with the effective date assigned for the 50 percent rating is superfluous. Also, disagreeing with each of the staged ratings provides the veteran with a larger potential grant of benefits than if he were to limit his disagreement merely with the effective date assigned for one of the staged ratings. The veteran's claim was remanded in January 2004 for issuance of a letter notifying the veteran of the Veterans Claims Assistance Act of 2000 (VCAA). Regarding the claim of an earlier effective date than May 10, 2002, for assignment of a 30 percent rating for PTSD, this claim was referred to the RO to issue a statement of the case in its January 2004 remand. After the RO issued a statement of the case in March 2004, the veteran submitted a timely substantive appeal in April 2004. Accordingly, the claim of an earlier effective date than May 10, 2002, for assignment of a 30 percent rating for PTSD is in proper appellate status. FINDINGS OF FACT 1. In a September 2001 rating decision, the RO granted service connection for PTSD and assigned a 10 percent rating. 2. On May 10, 2002, the veteran submitted a private treatment report regarding his PTSD from the psychologist M.P.; the report was dated April 23, 2002. 3. In an August 2002 rating decision, the RO increased the veteran's initial rating for PTSD to 30 percent for the period beginning May 10, 2002. 4. For the period prior to April 23, 2002, the veteran's PTSD has not been so disabling as to cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 5. For the period beginning April 23, 2002, the veteran's PTSD has not been so disabling as to cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 6. The veteran's only established service-connected conditions are PTSD (rated as 50 percent disabling); tinnitus (rated as 10 percent disabling); and bilateral hearing loss (rated as noncompensably disabling). His service-connected disabilities do not prevent him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an effective date of April 23, 2002, for the assignment of a 50 percent rating for PTSD have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.114, 3.155, 3.400 (2004). 2. For the period prior to April 23, 2002, the requirements for a higher initial rating than 10 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § § 4.126, 4.130, Diagnostic Code 9411 (2004). 3. For the period beginning April 23, 2002, the requirements for an initial rating of 50 percent (but not higher) for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.126, 4.130, Diagnostic Code 9411 (2004). 4. The requirements for a TDIU rating have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background The veteran underwent a VA general examination in February 2001. The examiner commented that because of the veteran's advanced chronic obstructive pulmonary disease, the veteran seemed to have very little pulmonary reserve, and even minimal activity caused the veteran to be markedly out of breath, which would preclude him from most types of employment. The veteran underwent a VA examination for PTSD in February 2001. He reported a sense of being distant from others and reported that he had been a loner. He had had 4 marriages and 4 divorces, and was not sure why he was unable to make the relationships last. He continued to have difficulty sleeping. He had irritability, but it was hard to know whether that was PTSD or because of heavy drinking. He did not have difficulty concentrating and did not experience hypervigilance and did not have exaggerated startle response. He did not react physically when something reminded him of the combat. He reported a heavy drug use. He last worked approximately 10 years ago in construction, but had not worked since because of chronic obstructive pulmonary disease. He did not work part-time as a bartender, but last worked in 1999. Examination showed a casually dressed, somewhat unkempt man, who appeared somewhat flushed. He was cooperative. Speech was of normal tone, volume, and pacing. He could reach his goal idea easily. There was no circumstantiality or looseness of associations. There was no disorganization or flight of ideas. He revealed no delusions or hallucinations. His affect was somewhat constricted. His mood was mildly dysphoric. Sensorium was clear, and he was oriented to time, person, place, and situation. Memory was intact. He was not a danger to himself or others. There was no impairment of executive function. Diagnoses were PTSD, chronic: alcohol dependence, continuous; and nicotine dependence. The examiner assigned a GAF score of 75, indicating a transient symptomatology that had not played a significant role in his impairment in social or occupational functioning. The examiner commented that the veteran's symptoms had been transient and not directly disabling. The symptoms had not affected his employability. He reported that he was seen in a Vet Center while he was in Washington, and that helped with the PTSD symptoms that he had. The veteran was seen by the psychologist M.P. in April 2002. The veteran appeared adequately groomed. He was alert and oriented in all spheres. He reported that he had a lot of suicidal ideation. He stated that he felt depressed everyday, and had suicidal thoughts daily. He denied a history of actual suicide attempts. He reported decreased energy and noted he awakened every two hours or so. He denied any history of hallucinations or delusions and did not display any symptoms suggestive of a thought disorder. He was alert and oriented in all spheres. Diagnostic impressions on Axis I were depression, not otherwise stated; PTSD; and alcohol abuse. The examiner assigned a GAF score of 55 to 60. The report was received at the RO on May 10, 2002. The veteran was hospitalized at BryanLGH Medical Center East in May and June 2002 for a chronic obstructive pulmonary disease exacerbation. The veteran was seen at the VA Medical Center in June and July 2002. In June 2002, the veteran complained of anxiety and depression. He stated that while he did not have thoughts of ending his life, he felt overwhelmed by the nature of his symptoms. He stated that he drank about a 6- pack a day. He reported that he had not been in any comprehensive treatment for his PTSD. The veteran's mood was constricted. He denied any suicidal ideation, intent, or plan. Cognitively, he was alerted and oriented times 3, with impairment in remote memory, impairments also in remote memory with the veteran unable to recall one out of three objects. He had no deficits in concentration. He had fair insight into the nature of his symptoms. Diagnostic impression was PTSD and alcohol dependence, and assigned a GAF score of 48. In July 2002, the veteran was seen with a goal directed thought process with an affect which appeared anxious, and cognitively showing mild impairment in concentration. Diagnoses were PTSD, and alcohol dependence. On the veteran's August 2002 TDIU application, the veteran wrote that he last worked full time in 1999 as a bartender The veteran underwent a VA examination in October 2002. It was noted that the veteran had been seen in July 2002 and assigned a GAF score of 48. The veteran had been able to maintain his interests. He lived in a relatively isolated fashion. He continued to have restricted affect. Arousal symptoms continued including sleep disturbance, anger, and increased startle response. The veteran had not worked because of his significant physical problem. He lived alone by himself I a mobile home. He received Social Security benefits of about $700 a month, and stated he could barely get by. He had been able to cut his drinking down to 1-2 beers a day. The veteran had appropriate personal hygiene. He was sitting in a wheelchair. He reported that he could walk short distances. He had appropriate eye contact and was pleasant during the interview. His mood was euthymic and his affect was appropriate to content of thought. His speech was of normal tone, volume and pacing. His thought content revealed no delusions, hallucinations, or grandiosity, or paranoia. His thought process was logical. He could handle problem solving. He was oriented to time, person, place, and situation. His memory for recent and remote was intact. His sensorium was clear. His abstractions were somewhat concrete. He was not a danger to himself or others. Psychological testing was not indicated. The combination of his physical and psychiatric problems would make him unemployable. The examiner stated that the veteran had not evaluated the veteran's physical problems, but what appeared in the chart, and what the examiner saw in the interview, the examiner stated that it was very unlikely that the veteran was employable. The examiner diagnosed the veteran with PTSD, alcohol dependence, nicotine dependence, and assigned a GAF score of 55. The examiner commented that the veteran's PTSD would contribute to some extent his unemployability, but by itself would not render him unemployable. Analysis Application of the Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the VCAA was enacted. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Among other things, the VCAA amended 38 U.S.C.A. § 5103 to clarify VA's duty to notify claimants and their representatives of any information that is necessary to substantiate the claim for benefits. The VCAA also created 38 U.S.C.A. § 5103A, which codifies VA's duty to assist, and essentially states that VA will make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. Implementing regulations for the VCAA were subsequently enacted, which were also made effective November 9, 2000, for the most part. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.159). The intended effect of the implementing regulations was to establish clear guidelines consistent with the intent of Congress regarding the timing and scope of assistance VA will provide to claimants who file a claim for benefits. 66 Fed. Reg. 45,620 (Aug. 29, 2001). Both the VCAA and the implementing regulations are applicable in the present case, and will be collectively referred to as "the VCAA." To comply with the aforementioned VCAA requirements, the RO must satisfy the following four requirements. First, the RO must inform the claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 and 38 CFR § 3.159(b)(1) (2004). In a July 2004 letter, the RO informed the veteran of the evidence he would have to submit in order to prevail on his claims of increased ratings for his PTSD, a TDIU, and an earlier effective date for the 30 percent rating of his PTSD. Second, the RO must inform the claimant of the information and evidence the VA will seek to provide. See 38 U.S.C.A. § 5103 and 38 CFR § 3.159(b)(1) (2004). In the July 2004 VCAA letter, the RO informed the veteran that the RO would get such things as relevant records from any Federal agency, including records from VA hospitals or from the Social Security Administration, and that it would request private treatment records, if the veteran completed a release form. Third, the RO must inform the claimant of the information and evidence the claimant is expected to provide. See 38 U.S.C.A. § 5103 and 38 CFR § 3.159(b)(1) (2004). The July 2004 letter told the veteran to send the RO any private treatment records, or to complete a separate form for each provider if he wanted the RO to request the records. Finally, the RO must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. See 38 U.S.C.A. § 5103 and 38 CFR § 3.159(b)(1) (2004). The July 2004 letter specifically requested that the veteran provide any evidence in his possession that pertained to his claim. It is pointed out that pursuant to 38 U.S.C.A. § 5103, upon receipt of a substantially complete application, the RO must provide the veteran with the aforementioned notices. In this instance, even though the appellant was not provided the aforementioned notice prior to the initial decision in September 2001, it is determined that he is not prejudiced by such failure. VA has consistently asked the veteran for information about where and by whom he was treated for PTSD throughout the more than 4 years that his claim has been adjudicated. There are no outstanding records to obtain. When the appellant has provided information about where he was treated for his claimed conditions, VA has obtained the records. The veteran was not prejudiced by the timing of the notices contained in the July 2004 VCAA letter. Following that letter, the development of the claim continued, and, in November 2004, the claim was reviewed and the veteran was sent a supplemental statement of the case. As a result, the veteran was provided the required notices and he was afforded an opportunity to respond after he was fully informed of the evidence needed to substantiate the claim. In short, the RO has informed the appellant of the information and evidence not of record that is needed, the information and evidence that the VA will seek to provide, the information and evidence the appellant must provide, and requested any additional evidence the appellant has that pertains to the claim. 38 U.S.C.A. § 5103 and 38 CFR § 3.159(b)(1) (2003); Quartuccio v. Principi, 16 Vet.App. 183 (2002). In view of the procedures that have been undertaken in this claim, further development is not needed to comply with VCAA. The appellant has been informed of the information and evidence needed to substantiate his claim, and he has been made aware of how VA would assist him in obtaining evidence and information. He has not identified any additional, relevant evidence that has not been requested or obtained. For the aforementioned reasons, there is no reasonable possibility that further assistance would aid in the substantiation of the claim. Entitlement to an earlier effective date than May 10, 2002, for assignment of a 30 percent initial rating for PTSD. Except as otherwise provided, the effective date of an evaluation and award of compensation, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (2004) In September 2001, the RO granted service connection for PTSD and assigned a 10 percent rating effective August 3, 2000. After the September 2001 rating decision, the veteran's representative submitted a private treatment report from the psychologist M.P. on May 10, 2002, within one year of the September 2001 rating decision. The treatment report was dated April 23, 2002. Although the RO mistakenly interpreted the submission of the private treatment record in May 2002 as a claim for increase, pursuant to Muehl v. West, 13 Vet. App. 159, 161 (1999) it is determined that the September 2001 rating decision never became final. Accordingly, the correct issues on appeal are entitlement to a higher initial rating than 10 percent for PTSD for the period prior to May 10, 2002, and entitlement to a higher initial rating than 30 percent for PTSD for the period beginning May 10, 2002, and ending August 29, 2002, and entitlement to a higher initial rating than 50 percent for PTSD for the period beginning August 30, 2002. Since the correct issues on appeal are entitlement to higher initial ratings (rather than entitlement to increased ratings), the correct effective date for the 30 percent rating for PTSD (which was assigned based on the submission of the report from M.P., Ph.D) should be the date of the report (April 23, 2002) rather than the date it was submitted (May 10, 2002). The evidence between August 3, 2000 (the effective date for the grant of service connection and assignment of a 10 percent rating), and April 23, 2002 (date of report from M.P., Ph.D. and date entitlement of the 30 percent rating arose) only consists of a February 2001 VA examination. It does not show that the criteria for higher than a 30 percent rating were met at any point prior to April 23, 2002. Accordingly, there is no basis upon which the Board can grant an earlier effective date for the 30 percent rating than April 23, 2002. Inasmuch as an earlier effective date has been assigned for the veteran's 30 percent initial rating, this will have an effect on the veteran's initial ratings claims. Specifically, the periods to consider for the veteran's initial ratings claims will also change. Based on the aforementioned grant of an earlier effective date, the issues on appeal are now: entitlement to a higher initial rating than 10 percent for the period prior to April 23, 2002; entitlement to a higher initial rating than 30 percent for the period from April 23, 2002, through August 29, 2002; and entitlement to a higher initial rating than 50 percent for the period beginning August 30, 2002. The propriety of the initial ratings for post-traumatic stress disorder (PTSD). In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) distinguished between a veteran's dissatisfaction with the initial rating assigned following a grant of service connection and a claim for an increased rating of a service- connected condition. In Fenderson, the Court agreed that the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.") was not applicable where the veteran was expressing dissatisfaction with the initial rating assigned. In the present case, the veteran is expressing dissatisfaction with the initial 10, 30, and 50 percent ratings assigned following the grant of service connection for his PTSD. Therefore, all of the evidence following the grant of service connection (not just the evidence showing the present level of disability) must be considered in evaluating the veteran's claim. The RO did consider all of the evidence following the grant of service connection so the veteran's claim is in appropriate appellate status. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The new general rating formula for mental disorders to include PTSD, under 38 C.F.R. § 4.130, Diagnostic Code 9411, effective November 7, 1996, are as follows: A 100 percent disability rating is in order when 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. A 70 percent disability rating is in order when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation, obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances ( including work or a worklike setting); inability to establish and maintain effective relationships. A 50 percent disability rating is in order when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 30 percent disability rating is in order when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. Regarding the claim for entitlement to a higher initial rating than 10 percent for post-traumatic stress disorder (PTSD) for the period prior to April 23, 2002, the only evidence for consideration is a VA examination conducted in February 2001. At the veteran's February 2001 VA examination, his GAF score was 75, and the examiner stated that the veteran's symptoms had been transient and not directly disabling. Although the examiner stated that the veteran had trouble sleeping, and was mildly dysphoric, he did not have difficulty concentrating, and did not experience hypervigilance, and did not have exaggerated startle response. Also, his memory was intact. According to the fourth edition of the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), a GAF score of between 71 and 80 means that there is no more than slight impairment in social, occupation, or school functioning. Accordingly, based on the findings at the veteran's February 2001 VA examination, with particular emphasis given to the GAF score, the evidence shows that for the period prior to May 10, 2002, the veteran did not meet the criteria for a 30 percent rating for PTSD. Specifically, the evidence did not show that there was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Accordingly, the claim for a higher initial rating than 10 percent for the period prior to April 23, 2002, must be denied. Regarding the claim for entitlement to a higher initial rating than 30 percent for PTSD for the period from April 23, 2002, through August 29, 2002, it is noted that in November 2002, the RO increased the veteran's PTSD rating to 50 percent. In doing so, it stated that the veteran filed a claim for increase on August 30, 2002; however, a review of the claims file shows that the veteran actually filed a notice of disagreement (not a claim for increase) with his PTSD rating on August 29, 2002. When the RO increased the veteran's rating to 50 percent in November 2002, it did so largely on the basis of an October 2002 VA examination showing that the veteran had a GAF score of 48. However, the veteran also had a GAF score of 48 when he was seen at the VA Medical Center in June 2002, and he had a GAF score of between 55 to 60 and had daily suicidal thoughts when he was seen by the psychologist M.P. on April 23, 2002. Accordingly as the findings beginning on April 23, 2002, were similar to the findings at the October 2002 VA examination, the veteran's initial PTSD rating is increased to 50 percent for the period beginning April 23, 2002. Thus, consideration of the veteran's claim for a higher initial rating than 50 percent for PTSD will consider the period beginning April 23, 2002, rather than just the period beginning August 30, 2002. For the period beginning April 23, 2002, the evidence does not show that the veteran has met the criteria necessary to receive a 70 percent rating. Although the veteran reported much suicidal ideation to the psychologist M.P. in April 2002, when he was seen at the VA Medical Center in June 2002, he denied any suicidal ideation, intent, or plan. At his October 2002 VA examination, his speech was of normal tone, volume, and pacing, his sensorium was clear, and his thought content revealed no delusions, hallucinations, or grandiosity, or paranoia. The examiner stated that the veteran was not a danger to himself or others. He had appropriate personal hygiene. While the evidence shows that the veteran has had some difficulty in adapting to stressful circumstances, and some difficulty in establishing effective relationships, the examiner at the October 2002 VA examination specifically commented that the veteran's PTSD would not by itself render him unemployable. Accordingly, based on the totality of the evidence, the evidence shows that for the period beginning April 23, 2002, the veteran does not meet the criteria for a 70 percent rating for his PTSD. While the veteran's PTSD has had consequences with regard to his employment, his disability does not have unusual manifestations and does not affect employment in ways that are not already taken into account under the provisions of the rating schedule. It is important to note that, under the provisions of 38 C.F.R. § 4.1, the percentage ratings contemplated in the rating schedule represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. In the absence of medical evidence showing frequent hospitalizations or marked interference with employability due to PTSD (i.e. interference with employability not contemplated in the rating criteria), the provisions of 38 C.F.R. § 3.321 relating to extraschedular evaluations are not applicable here. In conclusion, the veteran is granted a higher initial rating to 50 percent for his PTSD for the period beginning April 23, 2002. The preponderance of the evidence is against granting a higher initial rating than 10 percent for the period prior to April 23, 2002, and is also against granting a higher initial rating than 50 percent for the period beginning April 23, 2002. Thus, the benefit-of-the-doubt doctrine is not for application, and the veteran's claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a total disability rating based on individual unemployability (TDIU). Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2004). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b) (2004) In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341 (2004). Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19 (2004). The veteran is service-connected for three disabilities: PTSD (rated as 50 percent disabling); tinnitus (rated as 10 percent disabling); and bilateral hearing loss (rated as noncompensably disabling). The veteran does not satisfy the percentage rating standards for individual unemployability benefits, although consideration to such benefits on an extraschedular basis may be given. The issue is whether his service-connected disability precludes him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes this case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is 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). The veteran's service-connected disabilities (specifically his PTSD) clearly affects his employability to some degree. However, at the veteran's August 2003 VA examination, the examiner specifically stated that while the veteran's PTSD would contribute to some extent his unemployability, by itself it would not render him unemployable. There is no medical opinion that the veteran is unable to work due only to his service-connected disabilities. There is no probative evidence in the record to suggest that the veteran is incapable of performing sedentary work or other forms of similar work, due solely to the established service- connected disabilities. While his service-connected disabilities may limit him when performing some forms of work, it does not prevent all substantially gainful employment for which he is qualified by reason of his education and work experience. As a result, the Board finds that the criteria for a TDIU rating are not met. As the preponderance of the evidence is against the veteran's claim, the benefit-of-the-doubt rule is inapplicable, and the claim for a TDIU rating must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER For the period prior to April 23, 2002, entitlement to an initial evaluation in excess of 10 percent for PTSD is denied. An effective date of April 23, 2002, is appropriate for a 50 percent rating for PTSD. For the period beginning April 23, 2002, the veteran's PTSD rating is increased to 50 percent, but no higher. Entitlement to a TDIU is denied. _______________________________________ G.H. Shufelt Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs