Citation Nr: 1124404 Decision Date: 06/28/11 Archive Date: 07/06/11 DOCKET NO. 09-16 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial disability rating in excess of 10 percent for peptic ulcer disease, dyspepsia and/or gastroenteritis. 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1966, including combat service in the Republic of Vietnam, and his decorations include the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted service connection for PTSD and for peptic ulcer disease and assigned initial 50 percent and 10 percent ratings, respectively, effective January 11, 2008. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in March 2011. At his hearing, he testified is unemployable due to his service-connected PTSD. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for TDIU is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, given the conclusions in this decision as to the rating claim, TDIU is part of the increased evaluation claim currently before the Board. FINDINGS OF FACT 1. Since January 11, 2008, the Veteran's PTSD has been productive of occupational and social impairment, with deficiencies in most areas, such as work, family relations, poor impulse control, periods of violence, suicidal ideation, and an inability to establish and maintain effective relationships; however, the preponderance of the evidence shows that the disability has not been productive of total occupational and social impairment. 2. Since January 11, 2008, the Veteran's peptic ulcer disease, dyspepsia and/or gastroenteritis has been controlled with medication; and has not been manifested by nodules or gastric ulcer, or productive of severe symptoms or continuous moderate manifestations. 3. The Veteran's service-connected disabilities preclude him from obtaining and retaining all forms of substantially gainful employment consistent with his education and work experience. CONCLUSIONS OF LAW 1. Effective January 11, 2008, the criteria for a 70 percent schedular disability rating for PTSD have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.130, Diagnostic Code 9411 (2010). 2. The criteria for a disability rating in excess of 10 percent for peptic ulcer disease, dyspepsia and/or gastroenteritis have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.114, Diagnostic Codes 7399-7305, 7307 (2010). 3. The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a), (b) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In this case, the Veteran's claims for service connection for PTSD and for peptic ulcer disease, dyspepsia and/or gastroenteritis were granted and initial ratings were assigned in the July 2008 rating decision on appeal. As the Veteran has appealed with respect to the initially assigned ratings, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, with respect to the PTSD claim, and the claim for TDIU as part of the PTSD rating claim as a claim raised by the record under Rice v. Shinseki, 22 Vet. App. 447 (2009), at the March 2011 Board hearing, the Veteran and his representative indicated that a grant of a 70 percent disability rating for PTSD and of a TDIU would satisfy his appeal. In this decision, the Board grants a higher initial disability rating of 70 percent for the Veteran's PTSD and finds that entitlement to a TDIU is warranted. Generally, a claimant for a higher VA disability rating will be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy if less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993) (stating that a claimant may limit their claim or appeal to the issue of entitlement to a particular disability rating that is less than the maximum allowed by law for a specific service-connected condition, but, where there is no clearly expressed intent to limit the appeal, VA is required to consider entitlement to all available ratings for that condition). In this case, because the Veteran expressly limited his appeal and the Board is granting the benefit sought by the Veteran, the award of an evaluation of 70 percent for PTSD and entitlement to a TDIU constitutes a full grant of the benefit sought. As such, no discussion of VA's duty to notify or assist is necessary on these claims. Relevant to the duty to assist with respect to the peptic ulcer disease, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. The record contains the Veteran's available service records, post-service private and VA treatment records, a VA examination report and transcripts of hearing testimony. There is no indication of the existence of any pertinent post-service treatment records that are not on file. The duty to assist includes the duty to provide a medical examination or obtain a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was afforded relevant VA examination in June 2008 and in May 2009, which addressed the impact of the subject disability on his ability to work. The Board finds that the findings from the examination reports are adequate for the purposes of deciding the claim on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Significantly, the Veteran has not reported that the condition has worsened since the last examination, and thus a remand is not required solely due to the passage of time since the 2008 VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). At the recent Board hearing in March 2011, he testified indicating that the condition has remained static and/or constant in severity with the exception of occasional flare-ups during the year. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Finally, in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the United States Court of Appeals for Veterans Claims (Court) held that there are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked are not impacted by the Veteran's receipt of letter that complies with VA's duty to notify. Here, during the March 2011 hearing, the Veterans Law Judge (VLJ) discussed the elements that were lacking to substantiate the Veteran's claim and the Veteran's representative demonstrated actually knowledge of this information. The representative's questions specifically elicited responses designed to show that the Veteran's understood the criteria necessary to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.) Accordingly, the Veteran is not shown to be prejudiced on this basis. In addition, the VLJ sought to identify any pertinent, outstanding evidence that might have been overlooked. Accordingly, the Veteran is not shown to be prejudiced on this basis. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Merits of the appeal The Veteran asserts that his PTSD and peptic ulcer disease both warrant initial disability ratings higher than the 50 and 10 percent ratings assigned respectively. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In appeals of the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's statements and testimony describing the symptoms of his service-connected disabilities are deemed competent evidence. 38 C.F.R. § 3.159(a)(2) (2010). However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. On evaluating the condition of a service-connected disability, if it is not possible to separate the effects of a service-connected condition from that of a nonservice-connected condition, then 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the Veteran's favor; that is, any such ambiguity as to the origin of such signs and symptoms shall be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Thus, if any symptoms cannot be distinguished as between service-connected and nonservice-connected symptomatology, the Board will consider both as service-connected disability. Id. A. PTSD The Veteran's PTSD is currently rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. According to 38 C.F.R. § 4.126(a), a mental disorder shall be evaluated "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 examination." 38 C.F.R. § 4.126(a) (2010). The regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). The general rating formula for evaluating disability due to mental disorders is found at 38 C.F.R. § 4.130. The Veteran's PTSD, is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under that code, pursuant to the general rating formula, a 50 percent rating is warranted if the evidence shows 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted if evidence shows 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 work like setting); and an inability to establish and maintain effective relationships. A 100 percent evaluation is warranted if evidence shows 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; and memory loss for names of close relatives, own occupation, or own name. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In rating the severity of the Veteran's service-connected psychiatric disability under the criteria listed above, psychiatric health care providers have their own system for rating psychiatric disability. This is the Global Assessment of Functioning (GAF) rating scale, which is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM- IV); Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The GAF scale score assigned does not determine the disability rating VA assigns, but it is one of the medical findings employed in that determination. The medical evidence shows that numerous GAF scores have been assigned during the appeal. An examiner's classification of the level of psychiatric impairment, by words or by a score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. A GAF score, however, is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Bowling v. Principi, 15 Vet. App. 1, 14-15 (2001). The following applies to the GAF scores assigned in this case. A GAF score from 41 to 50 is defined as 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). GAF scores ranging between 61 to 70 reflect mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally indicate that the individual is functioning pretty well, and has some meaningful interpersonal relationships. DSM-IV. The claims file contains competent medical evidence found in VA treatment records following service and reports of VA examinations. The following is a summary of the material medical evidence relevant to the Veteran's claim over the relevant period associated with the Veteran's submission of his claim. The report of a June 2008 VA Compensation and Pension (C&P) psychiatric examination shows that the Veteran reported and/or endorsed complaints of having: occasional nightmares regarding inservice incidents, intrusive recollections, avoidance of thinking about past Vietnam related incidents, guilt and emotional numbness, sleep difficulties, anger issues, concentration difficulties, hypervigilance, irritable mood, and fleeting thoughts of suicide without a plan or any past attempts. He described symptoms consistent with panic, including the need to escape, feeling detached from his body, and rapid breathing. He denied any symptoms consistent with mania or hypomania. He denied having any suicidal ideation, decreased interest in motivation or activities, and he described his energy level as being pretty good. He denied having any mental health history or treatment prior to service. But he stated that in 1987 he was treated by a psychiatrist and was hospitalized at that time for depression and panic, which he believed had to do with problems at work. On mental status examination the examiner noted that the Veteran arrived on time and was adequately groomed and dressed in clean clothing. He was cooperative and answered questions completely and thoughtfully. His mood was euthymic and his affect was blunted. He was alert and oriented to person, place, and date. Thought processes were goal directed and there was no evidence of perceptual disturbance. His speech was clear and within normal limits for volume, rate, and rhythm. His memory tasks were performed without error. Tests were good for attention and concentration. Impulse control appeared to be poor given reports the Veteran's reports of outbursts. His abstract reasoning skills were fair and his insight and judgment were intact. After examination the examiner assessed that the Veteran endorsed a full range of PTSD symptomatology and did meet the diagnostic criteria. The Veteran had symptoms described above that had caused significant impairment in the Veteran's occupational functioning as he had difficulty maintaining steady employment because of extreme irritability with coworkers and supervisors. The Veteran reported having been fired four or five times and quitting numerous times being fed up with them. The examiner found that these symptoms were also negatively impacting his interpersonal social functioning as the Veteran did not feel close to his children, stating he could not express love, and had no friends. The examiner diagnosed PTSD, chronic, severe; for which she assigned a current GAF score of 45 on the basis of the Veteran's current social and occupational functioning. The report of a November 2008 VA C&P psychiatric examination shows that the Veteran reported complaints including of depression and other symptoms as similarly cited at the June 2008 VA C&P psychiatric examination, and unchanged since June 2008 in terms of duration, intensity, frequency, or severity. The Veteran indicated that in addition to his psychiatric disability, that his arthritis, hips, degenerative disc disease and migraine headaches interfered with his ability to work. The Veteran reported on a number of jobs from which he had been either fired or laid off, or had quit in controversy. Findings from mental status examination were closely similar to that of the June 2008 VA examination. The examination report concludes with an assessment essentially the same as in June 2008, a diagnosis of PTSD, chronic, severe, and a GAF score of 45 based on current social and occupational functioning. Review of the relevant VA treatment records on file dated from January 2007 to February 2009 show that the medical evidence therein is not inconsistent with findings from the June and November 2008 VA C&P psychiatric examinations. These show that the Veteran was having problems with his ability to work due to such symptoms as discussed above. These treatment records include GAF scores of 69 (April 2008), 45 (November 2008), and 50 (February 2009). In a December 2008 letter, Russell Coulter, M.D., opined that the Veteran's PTSD disabled the Veteran from working and that he still had persistent symptoms of PTSD. Dr. Coulter opined that the PTSD produces significant disability, and disabled the Veteran from working in regular employment for a substantial amount of time and causes persistent disability problems to the present day. During a March 2011 Board hearing, the Veteran credibly testified that due to his PTSD he had problems including with memory, flashbacks and intrusive thoughts, nightmares and problems sleeping, hypervigilance, anger outbursts, and feelings of hopelessness, depression, anxiety. He also testified that he suffered from panic attacks and impulse control, and that he startled easily. Testimony revealed that the Veteran had had 27 job changes in 33 years since service. He had ongoing psychiatric treatment most recently three months before. The Veteran testified to the effect that he was unable to work at his previous job as a truck driver due to his service-connected physical impairments. Further, because of his interpersonal impairment due to his PTSD, he could not work at a job requiring interactions with others. He had tried to get such jobs requiring only sedentary employment but was unable to complete those tasks. The Veteran's wife testified credibly substantiating the Veteran's testimony on these matters. On review of all of the evidence, and resolving all doubt in the Veteran's favor, the Board finds that his psychiatric symptoms more nearly approximate occupational and social impairment with deficiencies in most areas, such as thinking, family relations, work, and mood, which is consistent with findings during the June and November 2008 VA C&P psychiatric examinations. He is shown to have such deficiencies in most areas due to such symptoms as: suicidal ideation, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. He is shown to have symptoms productive of impaired impulse control (such as unprovoked irritability with periods of violence); and difficulty in adapting to stressful circumstances (including work or a work like setting). Lastly, his behavior is productive of an inability to establish and maintain effective relationships. Such combination of signs and symptoms are productive of criteria so as to warrant a 70 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. In this regard, the recorded GAF scores are essentially all in the range of scores between 41 and 50, as recorded in the two VA examinations and most of the VA clinical treatment records. GAF scores of 41 to 50 reflects serious symptoms or serious impairment in social and occupational functioning, including reflecting an inability to keep a job. See DSM-IV. Such findings reflect symptoms productive of occupational and social impairment with deficiencies in most areas, and an inability to establish and maintain effective relationships, which is consistent with criteria warranting a 70 percent disability rating under Diagnostic Code 9411. The April 2009 VA examination report noted that the Veteran had had suicidal thoughts. Such symptoms of being a danger to oneself are clearly serious psychiatric symptoms. See DSM-IV, 38 C.F.R. § 4.130, Diagnostic Code 9411. In sum, based on the foregoing, the Board finds that the Veteran's symptoms more closely approximate the rating criteria required for a 70 percent disability rating throughout the course of the entire period on appeal, which represents a complete grant of the benefit sought on appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In light of Hart v. Mansfield, the Board has considered whether a staged rating is appropriate at any time during the appeal. However, because the Veteran's PTSD symptoms remained relatively constant throughout the course of the period on appeal and at no time were more disabling than reflected by the 70 percent evaluation. As such, staged ratings are not warranted. B. Peptic Ulcer Disease The Veteran's service-connected gastrointestinal disability is identified in the rating decision coding sheets as peptic ulcer disease, dyspepsia and/or gastroenteritis, which is currently evaluated as 10 percent disabling pursuant to the hyphenated diagnostic code 38 C.F.R. § 4.114, Diagnostic Code 7399-7305. The Rating Schedule provides guidance in the evaluation of gastrointestinal disorders. In particular, 38 C.F.R. § 4.112 highlights the importance of weight loss in the evaluation of the impairment resulting from gastrointestinal disorders. The hyphenated diagnostic code in this case indicates that the service-connected disability is considered-by analogy-an unlisted digestive system condition (Diagnostic Code 7399) of duodenal ulcer (Diagnostic Code 7305). See 38 C.F.R. §§ 4.20, 4.27 (2009). Under that combined code, a 10 percent evaluation is assigned for mild disability with recurring symptoms once or twice a year. A 20 percent evaluation is assigned for moderate disability with recurring episodes of severe symptoms two or three times a year averaging ten days in duration, or with continuous moderate manifestations. 38 C.F.R. § 4.114, Diagnostic Code 7305. As reflected in the diagnosis contained in the report of a June 2008 VA C&P, the Veteran's took Prilosec to treat his gastrointestinal problems. The examiner noted that he continued to have dyspepsia and gastroenteritis. The diagnosis was peptic ulcer disease/dyspepsia/gastroenteritis. Gastroenteritis may be evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7307 (Gastritis). Although Diagnostic Code 7307 does not provide measurements related to nutritional status, such as anemia and weight loss, many of the other Diagnostic Codes pertaining to disorders of the digestive system do contain these measuring criteria. The provisions of 38 C.F.R. § 4.113 contain the explanation that diseases of the digestive system often produce a common disability picture characterized by abdominal distress or pain, anemia, and disturbances in nutrition. Diagnostic Code 7307 provides that a 10 percent rating is warranted for chronic gastritis with small nodular lesions, and symptoms. A 30 percent rating is warranted for chronic gastritis with multiple small eroded or ulcerated areas, and symptoms. A 60 percent rating is warranted for chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. Here, the Veteran's peptic ulcer disease, dyspepsia and/or gastroenteritis shall be considered under all potentially applicable diagnostic codes, to specifically include 38 C.F.R. § 4.114, Diagnostic Codes 7305 and 7307, and any other potentially applicable digestive system diagnostic code criteria. The report of a June 2008 VA C&P examination shows that the Veteran reported being first diagnosed with ulcers in the 1970s. He had had multiple esophagogastroduodenoscopies, most recently two years ago and currently, he did not have any ulcers but there were red spots. The examiner noted that these are usually called gastritis. The Veteran was taking Prilosec in treatment since the ulcer diagnosis. A colonoscopy two years before found no abnormalities. The Veteran reported that currently he did not have nausea, vomiting, hematemesis, or melena. He had never had any related surgery or hospitalization except for outpatient scopes. He occasionally gets diarrhea and did get gas quite often. He had never been incapacitated due to his stomach symptoms. He had no limitation on his activities of daily living. However, when he did have a flare-up with gastritis, he did lay down a lot. This happened about once per week and he had uncomfortable chest pain about once every three months. On examination, the abdomen was rounded, obese, bowel sounds were present, and there was epigastric tenderness. There were no organomegaly or masses palpated. The Veteran reported that his weight fluctuated between 234 and 250 pounds and he currently weighed 242 pounds. No diagnostic testing was performed. The report contains diagnoses including peptic ulcer disease/dyspepsia/gastroenteritis; the peptic ulcer disease was not seen with his last esophagogastroduodenoscopy and therefore appears to be controlled however he continues to actively have dyspepsia and gastroenteritis and is being treated. During a May 2009 VA C&P examination principally addressing the Veteran's overall medical picture as it relates to his ability to work, the examiner noted that currently the Veteran was not having any nausea or vomiting and had occasional diarrhea about once per week. The Veteran had not had incapacitations from his symptoms and was being treated with Prilosec. There were no limitations on his activities of daily living regarding the gastrointestinal problem. At the Travel Board hearing in March 2011, the Veteran testified indicating that the gastrointestinal condition had remained static and/or constant in severity in the last few years with the exception of occasional flare-ups during the year. On review, the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for the Veteran's peptic ulcer disease, dyspepsia and/or gastroenteritis. During the relevant period for review, the competent evidence does not show that the disability picture of the Veteran's peptic ulcer disease, dyspepsia and/or gastroenteritis meets any applicable diagnostic criteria for an increase in rating. As discussed above, there is no competent evidence of symptoms productive of more than mild duodenal ulcer symptoms. Notably, the recent clinical record shows that the peptic ulcer disease has not been shown present on recent esophagogastroduodenoscopy, and appears to be controlled, even though the Veteran was continuing to have dyspepsia and gastroenteritis. At the time of the last examination in May 2009, the Veteran reported there was no nausea or vomiting, only occasional diarrhea. There is no evidence of symptoms productive of recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations, so as to warrant a 20 percent disability rating under Diagnostic Code 7305. There is also no evidence of symptoms productive of chronic gastritis with multiple small eroded or ulcerated areas and symptoms, so as to warrant a 30 percent disability rating under Diagnostic Code 7307. Also, the evidence during the relevant time period does not show that the service-connected peptic ulcer disease, dyspepsia and/or gastroenteritis meets any other diagnostic criteria for a higher initial disability rating under any other relevant rating code for evaluating digestive system disorders of the stomach. See 38 C.F.R. § 4.114. While there was evidence of ulcer previously before the period under consideration, there is none since, and the most recent VA gastrointestinal examination (June 2008) concluded with a diagnosis indicating only that the peptic ulcer disease was not seen with his last esophagogastroduodenoscopy and appears to be controlled, although the Veteran continued to have dyspepsia and gastroenteritis and is being treated. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's gastrointestinal disability, which is productive of ulcers and gastrointestinal discomfort. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. For all the foregoing reasons, there is no basis for staged rating, pursuant to Hart, supra, and the preponderance of the evidence is against the grant of a disability rating in excess of 10 percent for peptic ulcer disease, dyspepsia and/or gastroenteritis. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21, 4.31. C. TDIU In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part and parcel of an increased-rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability is raised by the record. In the March 2011 Travel Board hearing before the undersigned, the Veteran testified that he could no longer work due to his PTSD. Therefore, pursuant to Rice, the Board has jurisdiction over the TDIU claim. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010). The governing regulations provide that, to qualify for a TDIU, if there are two or more service-connected disabilities, at least one shall be rated at 40 percent or more, and there shall be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the Veteran. 38 C.F.R. §§ 3.341(a), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (emphasis added). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Although neither the United States Code nor the Code of Federal Regulations offers a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21- 1, Part VI, para. 7.09(a)(7) defines that term as "that 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." In this case, service connection is in effect for (1) PTSD, which, in light of the determination above, is rated as 70 percent disabling throughout the pendency of the claim; (2) diabetes mellitus type II, which is rated as 20 percent disabling; (3) peripheral neuropathy of the left lower extremity, which is rated as 10 percent disabling; (4) peripheral neuropathy of the right lower extremity, which is rated as 10 percent disabling; (5) peptic ulcer disease, dyspepsia and/or gastroenteritis, which is rated as 10 percent disabling; (6) bilateral tinnitus, which is rated as 10 percent disabling; (7) scar of the right lower lateral thoracic wall, which is rated as zero percent disabling; (8) scar of the right posterior mid-triceps region, which is rated as zero percent disabling; and (9) hypertension, which is rated as zero percent disabling. The Veteran's disabilities thereby satisfy the requirements set forth in 38 C.F.R. § 4.16. The Board has considered all the evidence of record. Notably, as discussed above in the PTSD rating claim section, there are opinions contained in VA examination and VA and private treatment records mostly discussed above that lend strong support to the Veteran's TDIU claim. The Veteran has submitted statements and testimony asserting that the combined effects of his service-connected disabilities, above all, his PTSD, are so overwhelming that he is unemployable and thus entitled to a grant of a TDIU. Notably, during a May 2009 VA C&P examination for the purpose of determining the Veteran's employability in light of his service-connected disabilities, the examiner concluded that the Veteran would not be able to continue performing as a commercial truck driver due to the sensory deficits of his service-connected lower extremity disabilities. That examiner opined, however, that it appeared that the Veteran was at a very functional level, being able to walk, bend, stoop, without restrictions, and to use his upper extremities without restrictions. On that basis the examiner opined that the Veteran would be able to perform other types of jobs including sedentary jobs less demanding than truck driving. The Board is charged with the duty to assess the credibility and weight given to evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this capacity, the Board finds the Veteran's statements and testimony about his ability to obtain and maintain employment to be credible, as there are consistent with the psychiatric disability evidence of record, including the most recently assigned GAF scores, which have predominantly ranged in the 40s to about 50, which are consistent with an inability to work due to that condition. Indeed, according to DSM-IV, GAF scores ranging from 41 to 50 reflect serious symptoms, including serious impairment in social, occupational or school functioning, including an inability to keep a job. In addition, his statements are consistent with the medical evidence showing the severity of his PTSD. Notably, in a recent statement of December 2008, Dr. Coulter opined that the Veteran's PTSD produced significant disability, and disabled the Veteran from working in regular employment for a substantial amount of time and caused persistent disability problems to the present day. Thus, though the May 2009 VA C&P examination report contains an opinion as to the Veteran's employability with respect to physical impairment, the evidence overall shows that due to his psychiatric condition, the Veteran meets the criteria for a grant of TDIU. In light of the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that a grant of a TDIU is warranted. ORDER Subject to the law and regulations governing payment of monetary benefits, effective January 11, 2008, a disability rating of 70 percent for PTSD is granted. An initial disability rating in excess of 10 percent for peptic ulcer disease, dyspepsia and/or gastroenteritis, is denied. A total disability rating based on individual unemployability due to the Veteran's service-connected disabilities is granted, subject to the applicable criteria governing the payment of monetary benefits. ____________________________________________ STEVEN D. RESISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs