Citation Nr: 1213467 Decision Date: 04/12/12 Archive Date: 04/26/12 DOCKET NO. 07-10 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to February 21, 2007. 2. Entitlement to a rating in excess of 70 percent for PTSD, for the period from February 21, 2007, to July 13, 2011. 3. Entitlement to service connection for Hepatitis C. 4. Entitlement to an effective date earlier than February 21, 2007, for the grant of total disability (TDIU). REPRESENTATION Appellant represented by: William J. La Croix, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to January 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in February 2006, that continued a 50 percent disability rating for PTSD; in January 2008, that denied service connection for hepatitis C; and November 2008, that granted a TDIU, effective February 21, 2007. A January 2008 rating decision increased the rating from 50 percent to 70 percent for the Veteran's PTSD, effective February 21, 2007. However, as that grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In April 2010, the Veteran testified before the Board at a hearing held at the RO. In October 2010, the Board remanded these matters for additional development. In a November 2011 rating decision, the RO granted a 100 percent disability rating for PTSD effective from July 14, 2011, the date of a VA examination. However, as higher ratings are available for the period prior to July 14, 2011, the claim for an increased rating for PTSD remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Hepatitis C was not evident during service or until many years thereafter and is not shown to have been caused by any in-service event. 2. On August 11, 2005, the Veteran submitted a claim seeking an increased disability rating for his service-connected PTSD. 3. For the period prior to February 21, 2007, the Veteran's PTSD symptoms are indicative of occupational and social impairment with deficiencies in most areas. During this period the Veteran had a good support structure in his wife and daughter and stayed in close contact with his daughter. He had good friends. He sought and obtained employment. His memory was good for recent and remote events. Hence, symptoms of total occupational and social impairment have not been demonstrated. 4. For the period beginning on February 21, 2007, the Veteran's PTSD symptoms are indicative of total occupational and social impairment. 5. Resolving all reasonable doubt in favor of the Veteran, the Veteran's service-connected disabilities preclude gainful employment consistent with his education and occupational experience, effective January 8, 2007. CONCLUSIONS OF LAW 1. The criteria for service connection for Hepatitis C are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp 2011); 38 C.F.R. §§ 3.102 , 3.159, 3.301, 3.303 (2011). 2. The criteria for a 70 percent schedular rating for PTSD, but no higher, for the period from August 11, 2005, to February 20, 2007, are met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.159, 4.1, 4.3, 4.20, 4.130, 4.132, Diagnostic Code 9411 (2011). 3. With resolution of all reasonable doubt in the Veteran's favor, the criteria for a 100 percent schedular rating for PTSD, for the period beginning on February 21, 2007, are met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.159, 4.1, 4.3, 4.20, 4.130, 4.132, Diagnostic Code 9411 (2011). 4. With resolution of all reasonable doubt in the Veteran's favor, the criteria for an effective date of January 8, 2007, for the grant of a TDIU have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2011); 38 C.F.R. § 3.400 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in an August 2005 letter. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his attorney suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent November 2011 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The Veteran asserts that he has Hepatitis C due to his active duty service. He contends that he received a blood transfusion in Vietnam during a right knee shrapnel surgery and that this was the source of his Hepatitis C. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2011); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Risk factors for Hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine use, high-risk sexual activity, accidental exposure to blood by a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA Letter 211B (98-110) November 30, 1998. The service medical records are silent for complaints, treatment, findings, or diagnosis of Hepatitis C during the Veteran's period of service. Although he underwent surgery for shrapnel wounds of the right knee there is no indication that the Veteran sustained any bleeding or needed a transfusion. VA medical records dated in February 2004 indicate a remote history of hepatitis A. Hepatitis C risk factors included a remote history of intravenous (IV) drug abuse, a history of binge drinking, and a history of illegal drug use. The Veteran was diagnosed with hepatitis C. A March 2004 VA medical record notes that the Veteran has a history of IV drug abuse. It was also noted that the Veteran had a diagnosis of alcoholism. In May 2004, clinical findings were positive for hepatitis A, a hepatitis B core antibody, and hepatitis C with a genotype II. An April 2011 VA medical record noted that Hepatitis C was successfully treated. A July 2011 VA liver, gall bladder, and pancreas examination report shows that the Veteran's claims file was reviewed and pertinent evidence was discussed, to include a detailed hospital discharge summary from the Veteran's service. The Veteran acknowledged to the VA examiner that he used intravenous drugs after service. The diagnosis was Hepatitis C, successfully treated, asymptomatic. The VA examiner opined that the Veteran's hepatitis C was not caused by or a result of right knee shrapnel injury treatment. The examiner explained that there is no evidence in detailed records of the Veteran's treatment for knee injury of a transfusion and no evidence of hepatitis in service. The Veteran admitted to IV drug use after service and that is almost certainly the source of his Hepatitis C infection. After a careful review of the evidence, the Board finds that the preponderance of the evidence is against the claim for service connection for Hepatitis C. Initially, the Board notes that there is no competent evidence that the Veteran had Hepatitis C in service. The first medical documentation of Hepatitis C was in a February 2004 VA medical record. Such a lengthy period of time, more than 34 years, between service and the earliest post-service clinical documentation of a disability for which service connection is sought is, of itself, a factor weighing against a determination of service connection. Maxson v. Gober, 230 F. 3d 1330 (Fed. Cir. 2000). Moreover, the Board notes that the only medical opinion to address the medical relationship between the Veteran's hepatitis C and service, weighs against the claim. The July 2011 VA examiner opined that the Veteran's Hepatitis C was not related to his service, noting that detailed service medical records were negative for notations of bleeding or the need for a transfusion at the time of the Veteran's right knee injury in service. Further, based on the Veteran's admission of IV drug use post service, the VA examiner opined that his IV drug use was almost certainly the source of his Hepatitis C infection. The Board finds that this opinion constitutes probative evidence on the medical nexus question, based as it was on review of the Veteran's documented medical history and assertions and physical examination. That opinion provided clear rationales based on an accurate discussion of the evidence of record. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Significantly, neither the Veteran nor his attorney has presented or identified any contrary medical opinion that would, in fact, support the claim for service connection for hepatitis C. The Board also notes that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). In addition, the Board has also considered the Veteran's statements in support of his claim. However, there is no indication that the Veteran possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. Layno v. Brown, 6 Vet. App. 465 (1994). Consequently, his statements regarding the etiology of his Hepatitis C are insufficient to establish a nexus to service. The Board notes that under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the Board finds no basis for concluding that a lay person would be capable of establishing the etiology of Hepatitis C in the absence of specialized training. Hence, the lay assertions in this regard have no probative value. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for Hepatitis C, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinki, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2011). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2011). The Veteran's entire history is to be considered when assigning disability rating. 38 C.F.R. § 4.1 (2011); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2011). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2011). The Veteran's PTSD has been assigned a 50 percent rating from June 9, 2003, to February 21, 2007, and a 70 percent rating for the period from February 21, 2007, to July 13, 2011, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Pursuant to the General Rating formula, a 50 percent rating requires 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 per 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 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. A rating of 100 percent 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. Prior to February 21, 2007 The pertinent evidence for this period includes the Veteran's August 2005 claim for an increased rating for PTSD. He stated that he was currently unemployed due to the fact that he was unable to deal with the personalities of his supervisors and client. In the last three years, he had four different jobs. He was fired from one job because he did not fit in with the rest of the company, and the others he quit. An August 2005 VA social work note shows the Veteran called and was reportedly crying and screaming on the phone for the Blue Angels jets to stop practicing over his house for their upcoming air show. When reached at his home, the flights had stopped and the Veteran said he was calmer. He stated that he was having flashbacks of being "in country," but they stopped. A September 2005 VA PTSD examination report shows that the Veteran had been married four times and had one daughter who lived with her mother. The Veteran stayed in close contact with his daughter. He was seeking employment as a commercial construction supervisor. The Veteran was neatly dressed with good personal hygiene and was well groomed. He seemed to be quite honest. He had made no suicide attempts, and had no suicide or homicide ideas or impulses at that time. He denied hallucinations. The VA examiner could identify no delusions. There was no evidence of a thought disorder or communications impairment. His memory was good for recent and remote events. He was oriented to time, person, place, and circumstance. His judgment seemed intact. His insight was good. His affect was appropriate. The diagnosis was PTSD, chronic and severe; dysthymic disorder more likely than not secondary to or causally related to PTSD; and alcohol dependence in early partial remission. The Veteran had a good support structure in his wife and daughter. He had good friends. He had been unemployed for the past month. A GAF of 38 was assigned, noting major impairment in several areas including work, family relations, thinking, and mood. The examiner commented that the Veteran continued to experience severe symptoms of PTSD, including sleep disturbance, frequent nightmares, flashbacks, and was quite irritable and had frequent anger episodes which had caused him to lose many jobs. He was in counseling and received antidepressant medications which appeared to provide some relief of the depression and allow him to sleep a little better. However, the Veteran was severely impaired by his PTSD. The VA examiner opined that the Veteran was unemployable in productive work even with loose supervision and no requirement that he have contact with the public. A January 2006 VA psychology notes shows that the Veteran had been relatively stable due to psychotropic medication compliance. He presented as emotionally unstable and fragile. He clearly was not psychotic and denied suicidal or homicidal ideation. The diagnosis was PTSD, chronic, and severe and a GAF score of 40 was assigned. A March 2006 VA psychiatry record noted that the Veteran was working full time. He was oriented times four, and denied suicidal/homicidal ideation or plan. He appeared somewhat fragile. He reported some tearful episodes. His mood was low, and his affect was dysphoric, somewhat blunted, tearful. His insight was fair and judgement was fair. An October 2006 VA psychiatry record notes that the Veteran was recently in jail for 10 days related to earlier DUI convictions. He has been sober for a considerable amount of time. The VA psychologist noted that the dynamics and the etiology of both the Veteran's PTSD and alcohol abuse were discussed. The examiner noted that it appeared the Veteran's alcohol consumption early on was an attempt at that time for self-medication. The Veteran continued to have almost daily exacerbations of PTSD symptomatology and was considerably concerned with his ability to maintain employment due to the potential of his acting out aggressively on account of feeling hopeless regarding his employment circumstances. The diagnosis was PTSD, chronic, moderate-severe, and alcohol dependence (situationally imposed sobriety). An employer letter stated that as a result of the completion of the agreed on stage of a project construction, effective January 8, 2007, the services provided by the Veteran were no longer required. Considering the evidence in light of the criteria listed above, and resolving reasonable doubt in favor of the Veteran, the Board finds that during the period from the date of claim on August 11, 2005, the Veteran's PTSD more nearly approximates the criteria for a 70 percent rating. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7 (2011). Collectively, the pertinent medical evidence of shows reflects that the Veteran's PTSD symptomatology has included panic attacks, flashbacks, sleep disturbance, frequent nightmares, irritability, impaired impulse control (frequent anger episodes), affect that was dysphoric, somewhat blunted, tearful, insight and judgement that was fair, feelings of hopelessness regarding employment, and presented as emotionally unstable and fragile; collectively, these symptoms are indicative of occupational and social impairment with deficiencies in most areas. In granting the 70 percent for the Veteran's PTSD for the period prior to February 21, 2007, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders 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 the assigned rating for PTSD. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board also notes that the GAF scores of 40 and 38 assigned during this period are largely consistent with the assignment of a 70 percent disability rating. According to DSM-IV, GAF scores ranging from 31 to 40 indicate some impairment in reality testing or communications (e.g. speech is at times illogical, obscure, or irrelevant) or 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). While one may use one GAF score of 38 and one of 40 in a vacuum to possibly support a rating in excess of 70 percent during this time period, the Board finds it far more accurate to rely on the Veteran's actual signs and symptoms of PTSD, as related in narrative by health care personnel and examiners. The descriptions of the Veteran's symptomatology are the most accurate guide to identifying the severity of the psychiatric condition, and such narrative certainly trumps an examiner's one-time snapshot at the moment of an examination through the GAF score. 38 C.F.R. § 4.126(a) (2011). In this case, the extent and severity of the Veteran's actual PTSD symptoms reported or shown are suggestive of occupational and social impairment with deficiencies in most areas, including work, family relations, other social relations, mood and judgment, the level of impairment contemplated in the higher, 70 percent, rating for psychiatric disabilities, notwithstanding these GAF scores. The Board finds that the related symptoms attributed to his PTSD as provided by the medical personnel fail to find impairment in reality testing or communications as the Veteran's speech was normal, he did not neglect his family, and he was working, at least part of the time or was actively seeking employment. Moreover, although the medical evidence does not show such symptomatology as 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 and spatial disorientation, the symptoms noted in the rating schedule 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 disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, even though not all of the listed symptoms compatible with a 70 percent rating have been demonstrated in this case, the Board concludes that the type and degree of symptomatology contemplated for a 70 percent rating appear to be demonstrated from August 11, 2005, to February 21, 2007. The Board emphasizes, however, that the symptoms associated with the Veteran's PTSD do not meet the criteria for the maximum, 100 percent, rating for the period prior to February 21, 2007. A 100 percent rating requires total occupational and social impairment due to certain symptoms; however, the Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran's PTSD. Evidence of record does not indicate that the Veteran has exhibited persistent delusions; grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The Veteran had a good support system with his wife and daughter and has close friends. He was able to be around other people, even if to a limited degree, and although he appeared to have had a variety of employment, he actively sought employment and was employed. In addition, the Veteran had not been found to have any memory loss for names of close relatives, his own occupation, or his own name. Furthermore, the medical evidence clearly shows no evidence of delusions or hallucinations. Collectively, the Board finds that the psychiatric symptoms shown do not support the assignment of the maximum, 100 percent, rating for the period prior to February 21, 2007. Prior to February 21, 2007, the Board has considered whether the Veteran's claims for increased ratings should be referred for consideration of an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1) (2011) and has concluded that no such referral is warranted. The Veteran's symptoms are fully contemplated by the schedular rating criteria. A higher rating is are available PTSD. However the Veteran does not meet the criteria for a higher rating. There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards. Thun v. Peake, 22 Vet. App. 111 (2008). As of February 21, 2007 The evidence includes a February 2007 VA PTSD examination report showing that the Veteran had thoughts and images of Vietnam and that the symptoms had been getting worse in the past few months. He had nightmares that were very intense in which he awoke sweating, heart pounding, and with an intense fear of being killed. He had many flashbacks that had become more intense and frequent in the past two years. He had symptoms of avoidance, feelings of detachment, estrangement and isolation from people around him, sense of foreshortened future, arousal, sleep disturbance, irritability, and frequent outbursts of anger. He had lost many jobs because of rage episodes. He was hypervigilant, and had to make sure that his doors are locked every night. He startled easily and his response was exaggerated. The disturbance caused clinically significant distress and impairment in social, occupational and other important areas of functions. He also had symptoms of depression, to include low energy, fatigability, low self esteem, difficulty concentrating, and feelings of hopelessness. He had a good memory for recent and remote events. He was oriented time fours. His judgment seemed intact and sound, but impulsive. His insight was fair. Affect reflected depression and he appeared one step away from anger most of the time. He seemed almost explosive in developing episodes of rage. He had good grooming and personal hygiene. The diagnosis was PTSD, chronic, severe; dysthymic disorder, late onset; and alcohol dependence, in sustained early remissions. The Veteran had fair personal support structure in his daughter and his wife. He had one friend who he rarely saw. He was unemployed. He had made serious suicide attempts. He had no suicidal or homicidal ideas or impulses at the time. He denied any hallucinations. There was no evidence of a thought disorder. He had a GAF score of 40. The Veteran had major impairment in several areas, including work, family relations, and mood. The VA examiner commented that the Veteran's frequency of PTSD symptoms had been almost continuous with daily to weekly episodes of re-experiencing, avoidance, and arousal. There was an intense severity in the symptoms. He was an easily angered man and the anger appeared directly related to his combat experiences. He had lost a lot of time from work and was presently unemployed. The examiner opined that the Veteran was unable to work productively in any position even with loose supervision and no contact with the public. An April 2007 disability determination and transmittal from the Social Security Administration shows that the Veteran was disabled as of January 8, 2007 from a primary diagnosis of PTSD and secondary diagnosis of Hepatitis C. An April 2007 SSA functional capacity assessment notes that while the Veteran worked recently, it was estimated that he had had at least 200 jobs. The examiner noted that the Veteran had been struggling for quite a while despite obvious efforts to maintain employment. It appears that his tolerance was reduced and it was questionable whether he would be able to even return to his previous level of working without real stability. It was unlikely that he could handle any competitive work then or in the near future. A February 2008 PTSD disability work capacity evaluation report was completed by a private psychiatrist indicating that the Veteran was impaired to a degree of markedly limited impairment. The physician opined that the Veteran became totally and permanently disabled from his PTSD so as to prevent fully competitive work with regular pace and persistence on a regular 40 hour work week since December 2002. A July 2008 VA PTSD examination report shows that the Veteran retired three years earlier, to include receiving a Social Security Administration check. He stated he was unable to get a job in any of his trades because of a reputation of being difficult to get along with. The Veteran had nightmares where he could not go back to sleep, occasionally being physical with his wives. He had flashbacks weekly, varying in intensity. Various sounds and smells were cues of traumatic events. He had physiologic reactions including sweating, increased heart rate, anxiety, and panic. He avoided talking about his experiences and activities, and places and people that remind him of his experiences. He avoided crowds. The most characteristic symptomatology of the Veteran's PTSD was his irritability and outbursts of anger. He demonstrated poor concentration on the job. The Veteran was extremely suspicious of others, checked all doors and windows at night, and basically expected the worst in every life experience. He reported significant exaggerated startle response. He was intermittently passive-aggressive. His affect was mood congruent with what appeared to be a severely dysphoric mood with significant anxiety and tremendous anger. He had flashbacks, but no hallucinations. He was well oriented in all spheres. His thought process and communication were adequate. His diagnosis was PTSD and major depressive disorder, recurrent, related to PTSD and a GAF score of 50 was assigned. In summary, the VA examiner stated that the Veteran PTSD and associated depression symptoms resulted in deficiencies in most areas, to include work, school, family relations, judgment, thinking and mood, which was the same severity given in the last two VA examinations. The examiner stated that the Veteran could be a danger to himself or others from time to time. The examiner saw the Veteran within a brief period of time being unable to deal with the public or anyone being over him, plus his more recent prostate cancer had enhanced his anger and anxiety to the point that that was also a factor with his unemployability. During the April 2010 Board hearing, the Veteran testified that since 2005 the Veteran had several jobs, leaving most because of a personality conflict and his PTSD symptoms. He described his employment history as sporadic. His rage impacted his employability. The Veteran described his long term memory as bad. He took sleeping pill that sometimes help him sleep through the night. He had had thoughts of hurting himself or others. He tried to take his own life several years earlier. He avoided crowds, could not sit in the middle of a restaurant, and avoided noisy things. He did not belong to any clubs or participate in social activities. A July 2011 VA PTSD examination report shows that the Veteran had chronic depression especially if he forgets to take his medications, mood swings, depression, sad mood, worthlessness, hopeless and helpless, and suicidal intentions periodically at least one a month with no plan since 2000. His marriage was stressed because he had problems trusting her. He had rage and was anxious. He was under treatment. Speech was clear and coherent, affect was constricted, mood was anxious and dysphoric. He was easily distracted, some of which was caused by his anxiety. He has periodic suicidal ideas on a monthly basis, but denied plan and intent. No delusions or hallucinations noted. He understood the outcome of his behavior. He had a lot of nightmares and sleep disturbances. He became paranoid at night, thought he heard things, and went around outside at night and checked the house and locked doors. He had panic attacks, at least once a month, to the point that sometimes he could not leave the house. He became very agitated, hyperventilated, and had increased heart rate, and fear. He had fair impulse control, with no episodes of violence. The Veteran was able to maintain minimum personal hygiene. Recent and immediate memory was mildly impaired. The Veteran persistently avoided stimuli associated with trauma, felt detached or estranged from others, had a restricted range of affect, and had a sense of a foreshortened future. He had difficulty falling or staying asleep, irritability or outburst of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. He had intrusive thoughts every other day, nightmares at least once every few days, very gory dreams that woke him up, flashbacks one to two times a week, and was always on guard. The diagnosis was PTSD; major depressive disorder, recurrent, moderate that is secondary to PTSD and essentially part of the same psychological process; and alcohol dependence, in partial remission. His drinking was secondary to his symptoms of PTSD and depression. The examiner commented that the Veteran had been unable to hold a job because of difficulty in social interactions. The Veteran would not be able to function in the real world if he was not regularly engaged in his treatment. Prognosis was guarded. He was likely at baseline at present with current support and further improvement was not anticipated. The Veteran was unable to work based on his struggle with more intense symptoms of PTSD and depression in more stressful situations, his difficulty getting along with others, and being quick to anger in situations which were stressful. If he were to work, his symptoms would increase based on increased demands and stress, leading him to drink more heavily, get angry, react more aggressively, and have less time to contemplate more healthy coping strategies. All of that would lead his functioning to be vastly reduced, to the point he might even need a residential program for PTSD or inpatient hospitalization. Work for the Veteran would clearly be too much stress and that was consistent with the results of his last PTSD examination in July 2008. Those symptoms were permanent and would not remit. Based on a thorough review of the record, the Board concludes that the evidence is at least in relative equipoise as to the level of psychiatric disability, and as to whether it is reasonable to conclude that the disability picture is comparable to a 100 percent rating effective from the February 21, 2007 VA examination. Thus, with favorable resolution of reasonable doubt in the Veteran's favor, the Board finds that a 100 percent schedular rating under Diagnostic Code 9411 is warranted effective February 21, 2007. 38 C.F.R. § 4.7 (2011). The evidence shows that the Veteran's PTSD symptoms had increased as of the February 21, 2007, VA examination and continued thereafter to show greater severity than a 70 percent disability rating provides. The Veteran was shown to have PTSD symptoms that included feelings of detachment, estrangement and isolation from people around him, sense of foreshortened future, hypervigilance, exaggerated startle response, fair personal support structure in his daughter and wife, one friend who he rarely sees, flashbacks with physiologic responses, difficulty concentrating, low self esteem, severely dysphoric mood with significant anxiety and tremendous anger, found to be a danger to himself or other from time to time, and has fair impulse control. His symptoms were described as almost continuous with an intense severity. The July 2011 VA examiner concluded that, consistent with the result of the Veteran's July 2008 PTSD examination, work would clearly be too much stress. In addition, VA examiners have repeatedly opined that the Veteran was unemployable in productive work even with loose supervision and no requirement that he have contact with the public The Board notes that the Veteran's psychiatric symptomatology do not precisely mirror the symptoms illustrative of a 100 percent rating. For example, the evidence does not show gross impairment in communication; gross inappropriate behavior; persistent danger of hurting self or others; disorientation to place; or memory loss for names of close relatives, own occupation or own name. However, it is apparent that the Veteran's symptoms have essentially totally impaired his occupational functioning by severely reducing his reliability and productivity based on the reported symptomatology in the February 21, 2007 VA examination. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Moreover, the GAF scores assigned have ranged from 38 to 50 which demonstrates serious and major impairment in social, occupational, or school functioning. The Veteran overall picture is that he is unemployable and that the PTSD symptoms have been continuous and increasing in severity. It is the descriptions of the Veteran's symptomatology during this time period that provide the most accurate guide to identifying the severity of his PTSD. 38 C.F.R. § 4.21 (2011) (not all cases will show all findings specified in the rating criteria, but the rating must in all cases be coordinated with actual functional impairment). Accordingly, resolving reasonble doubt in favor of the Veteran, the Board finds that a 100 percent rating is warranted for the Veteran's service-connected PTSD, effective February 21, 2007. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As this decision is granting a 100 percent schedular rating for the service-connected PTSD, a discussion of entitlement to an extraschedular evaluation during this period is not required. Earlier effective date The effective date for an increased rating will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, provided a claim is received within one year from such date. Otherwise, the effective date for an increased rating will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a)(b) (West 2002); 38 C.F.R. § 3.400(o) (2011). In this appeal, the Veteran contends that the grant of a TDIU should date back to the day he filed his claim for an increased rating in August 2005. In this case, the Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities, specifically his PTSD. Service connection is currently in effect for posttraumatic stress disorder (PTSD), rated as 70 percent disabling for the period from August 11, 2005, the date of receipt of the claim for an increase, to February 21, 2007, and 100 percent thereafter; shell fragment wound of the right knee, rated 10 percent disabling; tinnitus, rated 10 percent disabling; erectile dysfunction, rated 0 percent; prostate cancer, status post radical prostectomy rated as 100 percent disabling from January 14, 2008 to April 30, 2010, and 0 percent from May 1, 2010. The Veteran's combined rating for compensation is 80 percent from August 5, 2005 to February 21, 2007, and 100 percent thereafter. In light of the above grant of 70 percent rating for the Veteran's PTSD, as of August 5, 2005, the Veteran's disabilities now satisfy the criteria set forth in 38 C.F.R. § 4.16(a) (2011). The remaining question, then, is whether the Veteran's service-connected disabilities render him unemployable The Board notes that the award of a 100 percent disability rating for the Veteran's PTSD from February 21, 2007, does not render moot the claim of entitlement to an earlier effective date for the award of TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). A separate TDIU rating predicated on one disability, although perhaps not ratable at the schedular 100 percent level, when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114(s). 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 and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2011); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, a VA form 21-4192 from Alco Building Company indicates that the Veteran was employed from January 2005 to March 2005 as a superintendent and that he quite to take another job. The employer noted that they were not informed of any disability. A VA form 21-4192 from Ford Construction indicates that the Veteran was employed from Mary 2005 to June 2005 as a project manager. The employer noted that the Veteran's hire packet indicated that he had no disability and any disability may have had were unknown to them. He was discharged because he did not fulfill the job requirements. A letter from the Veteran's last employer states that as a result of the completion of an agreed upon project, effective January 8, 2007, the Veteran's construction supervision services were no longer required. There is no indication that the Veteran was no longer able to work due to a service-connected disability or an inability to maintain his employment. Moreover, there is no evidence that his employment prior to January 8, 2007 was marginal employment. Thus, the Board finds that consideration of TDIU, under 38 C.F.R. § 4.16 is not warranted for the period prior to January 8, 2007 because the Veteran was employed at that time. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (TDIU is a part of an increased rating or initial rating only when there is evidence of unemployability). However, the Board finds that it is at least as likely as not that since January 8, 2007, the Veteran has been unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. That finding considers the Veteran's educational and employment history, and the more recent increase in disability ratings for the Veteran's service-connected PTSD. In combination, the Veteran's service-connected disabilities make it unlikely that he could secure or follow a substantially gainful occupation. Thus, the Board finds that the evidence is at least in equipoise such that reasonable doubt may be resolved in favor of the Veteran, and a total disability rating is granted effective January 8, 2007. Accordingly, the Board finds that an effective date of January 8, 2007, the day the Veteran stopped working, is warranted for the assignment of TDIU. The preponderance of the evidence is against the assignment of any earlier effective date. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hepatitis C is denied A 70 percent disability rating, but not higher, for PTSD from August 11, 2005, to February 20, 2007, is granted. A 100 percent disability rating for PTSD, effective February 21, 2007, is granted. An effective date of January 8, 2007, for the grant of a TDIU is granted. ___________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs