Citation Nr: 1005258 Decision Date: 02/04/10 Archive Date: 02/25/10 DOCKET NO. 06-04 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial disability in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) with alcohol dependency and cannabis abuse. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Joseph R. Moore, Attorney-at- law ATTORNEY FOR THE BOARD V. Chiappetta, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1970 to January 1973. He served in Vietnam and was awarded the Combat Infantryman Badge, among other awards and decorations. This matter is before the Board of Veterans' Appeals (the Board) on appeal of June 2005 and December 2006 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Procedural history In the above-referenced June 2005 rating decision, the RO granted the Veteran's service-connection claim for PTSD; a 30 percent disability rating was assigned effective January 11, 2005, the date of receipt of his claim for service connection. The Veteran disagreed with this assigned rating, and perfected an appeal as to that issue. In February 2006, the RO increased the Veteran's PTSD disability rating from 30 to 50 percent, also effective January 11, 2005. The Veteran has expressed continued disagreement with the 50 percent rating, and has made clear his desire to proceed with his appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) [when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated]. The RO also denied the Veteran's TDIU claim in the above- referenced December 2006 rating decision. The Veteran disagreed, and duly perfected an appeal as this issue as well. In April 2008, the Board denied the Veteran's appeal of the denial of an initial rating in excess of 50 percent and TDIU. The Veteran subsequently appealed the Board's April 2008 decision to the United States Court of Appeals for Veterans Claims [the Court]. A Joint Motion for Remand was filed, which the Court granted in June 2009. In essence, the Joint Motion indicated that the Board failed to adequately address how the Veteran's PTSD symptomatology affects his occupational and social impairment. Additionally, the Joint Motion indicated that the Board failed to provide an adequate statement of its reasons or bases for its finding that the Veteran was not entitled to TDIU benefits. See the June 2009 Joint Motion, pages 2 and 4. The Veteran's file has been returned to the Board. The Board sent the Veteran letters in July and September 2009, notifying the Veteran that he may submit any additional argument or evidence in relation to his claims. On December 10, 2009, the Veteran's attorney submitted a written statement of argument, as well as additional medical evidence in support of the Veteran's claims. This new evidence and argument was accompanied by a written waiver of consideration of such evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304 (2009). FINDINGS OF FACT 1. The medical and other evidence of record indicates that the Veteran's service-connected PTSD is manifested by severe social and occupational impairment with suicidal ideation, depression, impaired impulse control, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships; total social and occupational impairment is not shown. 2. The competent medical evidence of record supports a finding that the Veteran's service-connected PTSD renders him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW 1. The criteria for a 70 percent disability rating for service-connected PTSD are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2009). 2. The criteria for a total disability rating based on individual unemployability due to service-connected disability are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to an increased disability rating greater than 50 percent for his service-connected PTSD. The Veteran also claims entitlement to TDIU. In the interest of clarity, the Board will first discuss certain preliminary matters. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009). Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. The Board notes that the received appropriate VCAA as it relates to his claim of entitlement to service connection for PTSD. The veteran was informed of VA's duty to assist him in the development of his claim and advised of the provisions relating to the VCAA a February 2005 letter. The veteran was advised in that letter that VA is responsible for obtaining relevant records from any Federal agency, including service records, records from the Social Security Administration and VA treatment records. With respect to private treatment records, the letter indicated VA would make reasonable efforts to obtain relevant records not held by a Federal agency. Included with the letter were copies of VA Form 21- 4142, Authorization and Consent to Release Information, and the letter asked that the veteran to complete this release so that VA could obtain these records on his behalf. The February 2005 letter further emphasized: "If the evidence is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure that we receive all requested records that are not in the possession of a Federal department or agency." The veteran was also advised in the February 2005 letter that the VA would provide a medical examination, if such was necessary to decide his claim. Finally, the Board notes that the February 2005 letter requested of the veteran: "If there is any other evidence or information that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us." In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With respect to elements (4) and (5), the veteran was provided notice as to degree of disability and effective date in the March 2006 VCAA notice letter. This letter detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." With respect to effective date, the March 2006 VCAA notice letter instructed the veteran that two factors were relevant in determining effective dates: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule." Accordingly, the veteran has received proper notice as to disability rating and effective date pursuant to the Court's Dingess determination. With respect to his claim for TDIU benefits, the Veteran was furnished with a letter in July 2006 informing him of the criteria necessary to establish a total rating based on unemployability. He was informed of what information he should submit and what evidence VA would obtain on his behalf. In this case, the Board finds that any lack of notice did not affect the essential fairness of the adjudication because the veteran has demonstrated actual knowledge of what was required of him to substantiate his claim. In a February 2006 VA Form 9, the veteran informed VA as to the effect that his PTSD has had on his life and his employment and how he believed that his PTSD had worsened. The veteran also presented similar information during a February 2007 VA examination. Therefore, any error as to VCAA notice has been cured by the veteran's demonstration of actual knowledge of what is required to substantiate his claim. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. The Board's April 2008 decision contained an extensive discussion concerning VCAA compliance. See the April 2008 Board decision, pages 4-9. The June 2009 Joint Motion for Remand, as adopted by the Court, did not mention any VCAA deficiencies, either as to adequacy of VCAA notice furnished by the RO or as to the Board's discussion of the adequacy of such notice in its April 2008 decision. The Board is confident that if there were errors in terms of VCAA notice, or the Board's discussion thereof, this would have been brought to the Board's attention for the sake of judicial economy. Although the Court's June 2009 Order serves to vacate the Board's April 2008 increased rating and TDIU denials and their legal efficacy, the Board's prior discussion nonetheless remains a matter of record, and one which was clearly provided to the Veteran. Examination of the now- vacated decision reveals that the Board articulated how VCAA compliance with respect to the duty to notify was achieved. Furthermore, the Board observes that the Joint Motion did not address fault in the Board's previous notice discussion. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating it. There is nothing in the Joint Motion which suggests any deficiencies in this area. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2009). The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims. The Veteran is represented by an attorney. As noted above, the Veteran has recently submitted additional evidence and argument for consideration by the Board, and waived initial consideration of that evidence by the AOJ, specifically requesting that the "BVA proceed with adjudication of his claim." See the December 10, 2009 letter from the Veteran's attorney. Accordingly, the Board will proceed to a decision. 1. Entitlement to an increased disability rating for service-connected posttraumatic stress disorder (PTSD) with alcohol dependency and cannabis abuse, currently evaluated 50 percent disabling. Relevant law and regulations Disability ratings - in general 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. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2009). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Assignment of diagnostic code The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran's psychiatric disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 [posttraumatic stress disorder] (2009). Under the current criteria, Diagnostic Code 9411 is deemed by the Board to be the most appropriate primarily because it pertains specifically to the diagnosed disability in the Veteran's case [PTSD]. In any event, with the exception of eating disorders, all mental disorders, including PTSD, are rated under the same criteria in the Rating Schedule. Therefore, rating under another diagnostic code would not produce a different result. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9411. Specific schedular criteria The pertinent provisions of 38 C.F.R. § 4.130 relating to rating mental disorders read as follows: 100 Percent: 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. 70 Percent: 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. 50 Percent: 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 effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Codes 9411 and 9440 (2009). Global Assessment of Functioning Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (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; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. Analysis As noted in the Board's April 2008 decision, the Veteran's service-connected PTSD encompasses alcohol and marijuana abuse. Generally, the law precludes compensation for primary alcohol and drug abuse disabilities. However, such problems may be service-connected if they result from service- connected PTSD, as was done in this case. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Accordingly, any symptomatology associated with alcohol or marijuana abuse will be taken into consideration by the Board in evaluating the Veteran's PTSD. The Veteran's service-connected PTSD is currently rated 50 percent disabling. To warrant the assignment of an increased rating to 70 percent, the Veteran's PTSD must manifest in 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411. After reviewing evidence of record as a whole, to include the Veteran's most recent December 2009 examination report from Dr. M.L.C. and the instructions outlined in the June 2009 Joint Motion for Remand, the Board finds that the assignment of a 70 percent disability rating for the Veteran's service- connected PTSD is in fact warranted. The June 2009 Joint Motion correctly points out that the focus of the Board's analysis should not only be on the Veteran's PTSD symptomatology or to the criteria found in the VA rating schedule [see Mauerhan v. Principi, 16 Vet. App. 436 (2002)], but also on how that symptomatology affects the Veteran's "occupational and social impairment," if at all. See the June 2009 Joint Motion, page 3. In that connection, as noted above, to warrant a disability rating higher than the currently-assigned 50 percent, the Veteran's PTSD must manifest in symptomatology that causes deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. In December 2009, after a complete review of the Veteran's medical history and a thorough mental examination, Dr. M.L.C., a psychiatrist, pertinently summarized some of the Veteran's current PTSD symptoms, and their effect on daily functioning: The veteran engages in extensive avoidance to prevent thoughts, feelings or conversations being presented to him associated with [his in-service] trauma. There is no question that he avoids any circumstances including activities, places, or people that could potentially cause him to recall these events. He shows extremely restricted range of affect secondary to PTSD. The veteran also has symptoms of significant hyperarousal with difficulty falling or staying asleep, outbursts of anger, overt and severe hypervigilance, difficulty concentrating and difficulty functioning in any aspect of his day-to-day life. See the December 2009 private treatment report of Dr. M.L.C., page 5. Similarly, the February 2007 VA examiner also determined that the Veteran "demonstrates markedly diminished interest or participation in significant activities," and "isolative behaviors and feelings of detachment or estrangement from others[,] even immediate family members." See the February 2007 VA examiner's report, page 7. Significantly, the medical evidence of record demonstrates that the Veteran's PTSD manifests in much of the symptomatology listed under 38 C.F.R. 4.130 that also tends to demonstrate occupational and social impairment characterized by deficiencies in work, school, family relations, judgment, thinking, or mood. For example, the Veteran expressed feelings of suicidal ideation in January and April 2005, as well as in December 2009. See the Veteran's January 10, 2005 VA mental health consult note, his April 2005 VA examination report, page 5; and Dr. M.L.C's December 2009 examination report, page 5. The Veteran has been identified as having "severe . . . problems with depression . . . due to . . . the ongoing problems with PTSD symptoms and the problems created by PTSD symptoms in all areas of the client's life." See the September 20, 2006 private treatment report of R.P. The Veteran has also recounted instances of impaired impulse control, anger, and irritability, specifically noting at the April 2005 VA examination that he intentionally hit a person with his car when that person would not move out of his way, and that he has been laid off by supervisors for aggressive behavior, to include putting one supervisor in a head lock. See the April 2005 VA examiner's report, pages 6 and 2 respectively. Moreover, the Veteran has exhibited difficulty in adjusting to stressful circumstances [including work or a worklike setting], and an inability to establish and maintain effective relationships. As the December 2005 VA examiner noted, the Veteran's "PTSD and the alcohol and drugs he has used . . . have kept him from stable employment, much less anything like a career. He could not maintain a marriage and struggles to stay connected with his adult son and granddaughter. He is similarly marginalized socially having few friends, none close." See the December 2005 VA examiner's report. Finally, and crucially, in December 2009 Dr. M.L.C. assigned the Veteran a GAF score of 30, which as noted above, is a value at best indicative of major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood, or at worst indicative of behavior that is considerably influenced by serious impairment in communication or judgment or inability to function in almost all areas. The GAF score thus appears to be congruent with an increased 70 percent disability rating. Accordingly, based on the medical evidence of record as a whole, the Board believes that the Veteran's PTSD symptomatology as described by the medical professionals above, manifests in occupational and social impairment marked by deficiencies in most areas such as work, family relations, judgment, thinking, or mood, thus warranting the assignment of a 70 percent disability rating under Diagnostic Code 9411. However, the Board notes that the Veteran has does not have total occupational and social impairment as contemplated by a 100 percent disability rating. Pertinently, there is no evidence of gross impairment to thought processes and communication, persistent delusions or hallucinations, or grossly inappropriate behavior. Although the Veteran does show intermittent suicidal ideation, there is no persistent danger of the Veteran hurting himself or others, a disorientation to time or place, or memory loss for names of close relatives, own occupation or own name. At the Veteran's most recent evaluation with Dr. M.L.C., it was pertinently noted that the Veteran was "cooperative and appropriate with the interview," "his speech was normal in rate, tone, and volume," with "no evidence of any psychosis, delusions, or bizarre thinking . . ." Dr. M.L.C. added that the Veteran appeared to be "cognitively intact, and was of average intelligence." See the December 2009 private treatment report of Dr. M.L.C., page 5. In not granting a 100 percent schedular rating for PTSD, the Board is not minimizing the severity of the Veteran's symptoms. These symptoms, while productive of significant impairment, are not so severe that the Veteran can be said to be totally impaired. Despite demonstrated difficulties with respect to social relationships, the Veteran is clearly able to function socially, as has been demonstrated by continuing a relationship with his girlfriend, his son, daughter-in-law, and granddaughter. See the February 2007 VA examiner's report, page 5. Hence, while the Veteran may have difficulty coping with others, the evidence does not demonstrate total social impairment. With respect to occupational impairment, this is clearly demonstrated, but such pathology is contemplated in the assignment of a 70 percent rating. [Moreover, as will be discussed in more detail below, the Board is granting the Veteran's claim for TDIU based on his occupational impairment]. In summary, the evidence does not disclose the severe level of impairment of thought processes required for the assignment of a 100 percent schedular rating, and the 70 percent disability rating will be assigned. Fenderson considerations In Fenderson v. West, 12 Vet. App. 119 (1999), the Court discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. In this case, a 50 percent rating has been assigned since the effective date of service connection, January 11, 2005. However, the medical evidence of record demonstrates that at the time the Veteran filed his original PTSD service- connection claim, his PTSD disability was severe enough to warrant a 70 percent disability rating. Crucially, the Veteran's VA physician, Dr. M.B., pertinently noted in April 2002 that the Veteran was "suspicious of others and tries to avoid people," "has very limited friends," and "feels depressed most of the time and there are days that he is unable to work because of depression." See the April 25, 2002 VA Mental Health Clinic Note. Dr. M.B. crucially diagnosed the Veteran with PTSD, polysubstance dependence, alcohol and marijuana in remission, anxiety and depression at that time. He also assigned the Veteran a GAF score of 43, which reflects 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]. Thus, it appears that at the time the Veteran filed his service-connection claim, his mental illness already manifested in severe occupational and social impairment, warranting a 70 percent disability rating. Accordingly a 70 percent rating is assigned from January 11, 2005 [the date of the Veteran's claim], and for all times thereafter. As noted above, at no time subsequent to January 11, 2005 has the Veteran's PTSD manifested in total occupation and social impairment, warranting a 100 percent rating. Extraschedular rating Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration. In this case, as will be discussed in detail below, the Board is awarding the Veteran disability benefits based on individual unemployability due to his service-connected disabilities (TDIU). According to VA regulations, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2009). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App, 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's PTSD disability. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the Veteran's PTSD manifests in severe social and occupational impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood-deficiencies specifically contemplated under the mental illness ratings criteria for the currently- assigned 70 percent rating. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. The Board therefore has determined that referral of the Veteran's PTSD disability for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Conclusion In summary, for the reasons and bases expressed above, the Board concludes that the severity of the Veteran's PTSD warrants the assignment of an increased disability rating from 50 to 70 percent, effective the date the Veteran filed his original service-connection claim, January 11, 2005. To that extent, the benefit sought on appeal is allowed. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). TDIU - in general It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16 (2009). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2009). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." See 38 C.F.R. § 4.16(a) (2009). The Court noted the following standard announced by the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. 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. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2009). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a) (2009). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. Analysis The Veteran is service connected for PTSD, which is now rated 70 percent disabling. The Veteran is also service-connected for hypertension, rated 10 percent disabling. In light of the 70 percent rating currently assigned for PTSD, the Veteran meets the criteria for schedular consideration of TDIU. See 38 C.F.R. § 4.16(a) (2009). The Veteran, through his attorney, has asserted that he can no longer follow gainful employment due to his service- connected PTSD. See the December 10, 2009 Appellant's Brief, page 1. After a review of the evidence of record, the Board agrees. The December 23, 2005 VA examiner pertinently determined after a review of the Veteran's claims file and a thorough examination that the Veteran's "PTSD and the alcohol and drugs he has used at least in part as an effort to medicate it, have kept him from stable employment, much less anything like a career." See the December 2005 VA examiner's report, page 3. Subsequently, in a September 2006 private treatment report, R.P. specifically noted that the Veteran "has experienced problems establishing and maintaining any type of gainful employment due to severe PTSD symptoms; severe anxiety experienced when [the Veteran] is around groups of people and being in a closed room, inability to sleep, distrust of all people and severe anger/range problems." See the September 20, 2006 treatment report of R.P., MSW. The Board notes that although the February 2007 VA examiner noted that the Veteran was capable of doing "simple routine work" such as painting or cooking, such does not mean that the Veteran is capable of maintaining substantially gainful employment. Indeed, the February 2007 VA examiner specifically noted that for the Veteran to be capable to sustain employment, "[r]estrictions on the veteran's contact with fellow coworkers and supervisors would be necessary given his increased irritability and discomfort when working in close proximity with others." See the February 2007 VA examiner's report, page 9. Finally, in December 2009, Dr. M.L.C. pertinently concluded after a thorough mental evaluation that "[t]here is no question that [the Veteran] has severe PTSD that has been completely disabling to him for an extended period of time . . . . [The Veteran] was unemployable due to his PTSD in 2005 but was likely so far earlier." See the December 2009 private treatment report of Dr. M.L.C. Accordingly, the examination reports noted above clearly indicate that the Veteran's service-connected PTSD is productive of severe symptomatology which can be said to preclude employability. Based on the above analysis, the Board concludes that a grant of TDIU is warranted under 38 C.F.R. § 4.16(a), even without considering the impact the Veteran's other service-connected disability [hypertension]. In reaching this decision, the Board observes that Dr. M.L.C. has asserted that the Veteran's PTSD has rendered the Veteran unemployable for a long period of time, dating from before the Veteran's January 2005 PTSD claim. However, Dr. M.L.C.'s opinion does not discuss the medical evidence of record that demonstrated that the Veteran had been working on a steady basis as a roofer through December 2005. Indeed, the Veteran reported to the April 2005 VA examiner that at the time, he was sharing roofing jobs with three other men, earning approximately $1000 per month. See the April 2005 VA examiner's report, page 3. U.S. Census Bureau's Housing and Household Economics Statistics Division, the poverty threshold for one person under 65 years of age was $10,160 in 2005. Additionally, a subsequent November 2005 treatment report crucially indicated that the Veteran "has been working on a steady basis." See the November 2, 2005 Progress Note from the Milwaukee V.C. However, with consideration of the seriousness of the Veteran's PTSD during the course of the appeal and granting the Veteran the benefit of the doubt, the Board finds that the evidence is at least in equipoise concerning his ability to maintain gainful employment throughout the course of the appeal. It is clear from the record that his ability to maintain gainful employment diminished drastically following the December 2005 VA examination. See, e.g., the Veteran's May 24, 2006 Progress Note from the Milwaukee V.C. [indicating that the Veteran was working only "when he could get work."] As noted above, in September 2006 R.P. had specifically determined that the Veteran was unable to maintain any type of gainful employment due to his PTSD symptoms. See the September 20, 2006 treatment report of R.P., MSW. For the reasons and bases expressed above the Board finds that the Veteran's claim for TDIU is warranted on a schedular basis throughout the course of this appeal. The benefit sought on appeal is accordingly granted. ORDER Entitlement to an increased disability rating, 70 percent, for PTSD is granted, subject to controlling regulations applicable to the payment of monetary benefits. Entitlement to TDIU is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ____________________________________________ DAVID L. WIGHT Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs