Citation Nr: 1128057 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 00-16 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD), prior to January 8, 2008. 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from June 1969 to June 1971, and from October 1974 to June 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2000 and February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. Procedural History The appellant was originally granted service connection for PTSD in a May 1998 rating decision. A 50 percent disability rating was assigned. The Veteran did not appeal this decision. In the above-mentioned April 2000 rating decision, the RO continued the 50 percent disability rating assigned to the appellant's PTSD. The appellant subsequently perfected an appeal of this decision. In August 2000 and January 2004, the appellant requested to appear at a hearing before the Board. By written correspondence dated in April 2004, the appellant's representative canceled the hearing. Thus, no action in this regard is warranted. See 38 C.F.R. § 20.704(e) (2010). The Board issued a decision in May 2005, which denied the appellant's claim for an increased disability rating for his service-connected PTSD. He appealed to the U.S. Court of Appeals for Veterans Claims (Court). In May 2006, the appellant's representative and VA's Office of General Counsel, representing the Secretary of VA, filed a joint motion requesting that the Court vacate the May 2005 Board's decision to deny the appellant's claim for an increased disability rating and remand the case for readjudication in compliance with directives specified. The Court issued an Order in June 2006, granting the joint motion and returned the case to the Board. In September 2006 and November 2007, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development of the record, in order to ensure due process and compliance with the directives specified in the joint motion, to include adjudication of entitlement to a TDIU. In a March 2008 rating decision, the RO increased the appellant's PTSD disability rating to 100 percent. An effective date of January 8, 2008 was assigned based on a VA examination report of the same date. The appellant, through his representative, indicated continued dissatisfaction with the effective date of the 100 percent disability rating and continued to argue that the Veteran was entitled to a TDIU. In October 2009, the Board again remanded the case to the AOJ to adjudicate the issue of entitlement to a TDIU. In the above-mentioned February 2010 rating decision, the RO denied the appellant's claim for entitlement to TDIU. The Board finds that the RO substantially complied with the mandates of the October 2009 remand and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In May 2011, the Board received a private opinion dated in April 2011 from M.L.C., M.D. The Board notes that VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case (SSOC) unless this procedural right is waived in writing by the appellant or representative. 38 C.F.R. §§ 19.37, 20.1304 (2010). In a written statement dated in May 2011, the appellant's representative waived RO consideration of the new evidence. Thus, the Board finds no prejudice to the appellant in proceeding to adjudicate this appeal. FINDINGS OF FACT 1. From March 23, 2000 through January 7, 2008, the appellant's service-connected PTSD was manifested by depression, nightmares, panic attacks, hyperarousal symptoms, and irritability, productive of occupational and social impairment comparable to no more than deficiencies in most areas such as work, school, family relations, judgment, thinking or mood. 2. From January 8, 2008, the competent evidence of record establishes that the appellant is precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. For the period from March 23, 2000 through January 7, 2008, the criteria for entitlement to an evaluation 70 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.126, 4.130, Diagnostic Code 9411 (2010). 2. The criteria for entitlement to a TDIU have been met from January 8, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). As to the claim of entitlement to TDIU, that claim has been granted, as discussed below. As such, the Board finds that any defect related to VA's duties to notify and assist under the VCAA on that claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010); Mlechick v. Mansfield, 503 F.3d 1340 (2007). Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. In the present case, the RO decided the appellant's claim in April 2000, prior to the enactment of the VCAA on November 9, 2000, and therefore did not provide VCAA notice prior to its decision. However, a VCAA notice letter was issued in September 2006, and addressed the assignment of a disability rating and effective date for any benefit awarded. Although this letter was not sent prior to initial adjudication of the appellant's claim, this was not prejudicial to him, since he was subsequently provided adequate notice, he was provided time to respond with additional argument and evidence and the claim was readjudicated and an additional supplemental statements of the case (SSOC) were provided to the appellant in March 2008 and December 2010. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). Duty to Assist The Board concludes VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records submitted by the appellant have been associated with the claims file. The appellant's Social Security Administration records have been associated with the file. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2010). The RO provided the appellant with appropriate VA examinations in March 2000, December 2000, November 2003 and January 2008. As a new VA examination would provide information about the current state of the appellant's PTSD, it would not be relevant to the issue of entitlement to an evaluation in excess of 50 percent for PTSD, prior to January 8, 2008. The VA examination reports are thorough and supported by VA treatment records and provided findings pertinent to the rating criteria. The examinations in this case are adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. PTSD Legal Criteria Ratings in General Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 4.1 (2010). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, where, as here, the appellant is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Rating Criteria for PTSD PTSD is rated by applying the criteria in 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). The VA Schedule rating formula for mental disorders reads in pertinent part as follows: 100 percent rating (the maximum schedular rating) - 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 work like 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The appellant's medical records reflect a nonservice-connected Axis I diagnosis of depression. See November 2003 VA examination report. However, most of the medical records have not specifically indicated what symptoms are attributable only to the nonservice-connected disability. Thus, the Board will, for the limited purpose of this decision, attribute all psychiatric signs and symptoms to his service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998) (finding that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the veteran's favor, clearly dictates that such signs and symptoms be attributed to the service-connected condition). Global Assessment of Functioning (GAF) GAF is 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 DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)) (DSM-IV). According to DSM-IV, a GAF score of 51 to 60 indicates the examinee has moderate symptoms or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 50 indicates the examinee has serious symptoms or a serious impairment in social, occupational, or school functioning. A GAF score of 31 to 40 indicates the examinee has some impairment in reality testing or communication or major impairment in several areas, such as work or school. A GAF score of 21 to 30 indicates that the examinee's behavior is considerably influenced by delusions or hallucinations, has serious impairment in communication or judgment, or is unable to function in almost all areas of life. See also QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-47 (1994). Analysis The appellant contends that he is entitled to an evaluation in excess of 50 percent for PTSD, prior to January 8, 2008. The appellant was seen for a routine VA examination on March 23, 2000. In an April 2000 rating decision, the RO continued the appellant's evaluation of 50 percent for PTSD. The appellant submitted a June 2000 notice of disagreement with the rating decision. In an increased-rating claim the rating period for adjudication is from one year before the claim was filed. See 38 C.F.R. § 3.400(o)(2) (2010). As the March 23, 2000 VA examination was not performed pursuant to a claim, but rather as a routine procedural matter, the rating period on appeal is from March 23, 2000 through January 7, 2008. In accordance with 38 C.F.R. §§ 4.1 and 4.2 (2007) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the history of the disability is for consideration in rating a disability. After reviewing the evidence of record, the Board finds that a 70 percent rating is warranted for the period from March 23, 2000 through January 7, 2008. The evidence reflects that the appellant had occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The appellant reported impaired impulse control. At the March 23, 2000 VA examination, the appellant reported that he has an extremely "short fuse" and gets very angry fast. As a result, he kept himself distant from the members of his family and workers. He stated that he was able to work, but he adjusted by keeping himself distant from his other co-workers. He stated that he had enormous difficulty with his anger and reported that he had a huge fight with his daughter the previous night. The March 2000 VA examiner noted that the appellant's behavior was appropriate during the interview, but the appellant reported that he gets extremely angry very quickly and inappropriately. The examiner noted that the appellant had poor anger control. A GAF score of 50 was assigned. A December 2000 VA examination report reflects that the appellant reported that earlier during the year he was upset with his daughter and he threw a telephone across the room at her, leaving a hole in the wall near where she was standing. He continued to work at a box factory from 8 to 5. He reported that when he goes out to eat he has to sit in a corner, and this is associated with a fantasy in his own thoughts that he might "go postal" and strike out violently toward anyone around him. He sensed a possibility of becoming violent. A November 2003 VA examination report indicates that the appellant reported that he does not get along well with his children and this causes further conflicts. However, the appellant denied any suicidal or homicidal thoughts or feeling violent. He reported that he has poor impulse control and if there is money in the bank, he will spend it. Therefore, his wife managed their finances. The appellant reported symptoms of spatial disorientation at the March 2000 VA examination. The VA examiner noted that the appellant was oriented to time, place and person, but admitted that when experiencing his nightmare and flashbacks he would become disoriented. The evidence also indicates the appellant had difficulty in adapting to stressful circumstances and experienced panic attacks and depression. The March 2000 VA examination report indicates that the appellant reported experiencing attacks of paranoia where he would feel that someone was following him and would be unable to drive into his driveway. At the March 2000 VA examination, the appellant reported having panic attacks on a weekly basis at a minimum, if not more. The December 2000 VA examination report reflects that the appellant reported that at work in the past month, a worker dropped an item which made a loud noise and the appellant jumped into a machine in order to escape the danger that he suddenly felt. The appellant reported that if the machine that he hit had been operating, such would have been hazardous, but fortunately, it was off. He reported a growing paranoid feeling of anxiety. He reported that he often gets the feeling that someone is following him. The VA examiner noted that there is nothing delusional about this thought, no fixed delusional belief that he is being persecuted or about to be attacked, just a hypervigilant, apprehensive sense of danger. The VA examiner noted that the appellant's symptoms were just serious enough, especially with the occurrence of these anxious feelings of being pursued increasing, that although he was still working, his social and occupational functioning is not very good, and his moods and thoughts related to his PTSD are still very active. The VA examiner noted that although the appellant continued to be able to work at his present job, his functioning was limited to being in situations in which he can isolate himself from others and yet he is still prone to intense startle reactions. His GAF score was 50. The November 2003 VA examination report indicated the appellant reported that he had been experiencing panic attacks at the frequency of about four times a year. The evidence also reflects that the appellant had an inability to establish and maintain effective relationships. The March 2000 VA examination report indicates that the appellant reported that he lead a very isolated lifestyle. He stated that he had one close friend, a cousin, and that he could not make friends. He reported that he remained married, but he and his wife did not talk or communicate. The March 2000 VA examiner noted that the appellant had difficulty in establishing and maintaining effective work and social relationships. At the December 2000 VA examination, the appellant reported that he rarely saw his wife. He stated that he watched TV almost all day long and would rarely go into a crowded place. The appellant was often able to work by himself and avoided other people, and thus, did not experience conflicts with others while on the job. At the November 2003 VA examination, the appellant reported that he did not get along well with his children and did not socialize often. He reported that he has one friend whom he visits from time to time. He stated that he avoids crowds. A July 2006 VA treatment record indicates that the appellant lived a relatively isolated social existence. He reported that he had one friend who he sees about every two weeks. He stated that he spends most of his time alone and has no real interest in doing anything except surviving. The March 2000, December 2003 and November 2003 VA examination reports reflect that the appellant consistently denied symptoms of suicidal ideation. He also did not report obsessional rituals which interfere with routine activities and his speech was normal. There was no evidence of neglect of personal appearance and hygiene. The March 2000 VA examination report reflects that the appellant was oriented to time, place and person. Memory was intact for the recent and remote past and his speech was normal. Concentration was good. The appellant reported other serious symptoms of PTSD. At the March 2000 VA examination report, the appellant reported that he had nightmares, and flashbacks at least once or twice a week. The appellant denied any auditory hallucinations, but reported occasionally hearing the voice of his mother who died two years ago calling his name. At the November 2003 VA examination, the appellant also reported that after he returns home from being outside, he goes to the window to make sure that no one has followed him. At times he perceives bushes moving and he often hears people talking at night. At the March 2000 VA examination, the appellant reported that he had tried to attend school twice since a January 1998 VA examination, but both times he was unable to concentrate and was not able to stick with the program. At the November 2003 VA examination, the appellant noted that he had tried several hobbies, but could not concentrate and lost interest shortly after he began a hobby. A December 2000 VA treatment record indicates the appellant had sleep onset insomnia due to circadian rhythm sleep disorder and PTSD. The appellant submitted May 2010 statements from his wife, brother, foster-brother and sister-in-law. Lay statements may be competent where the events or the presence of disability, or symptoms of a disability are subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also finds that the lay statements are credible, as they do not conflict with any other evidence of record. The lay statements are consistent with the VA examination reports of record. The appellant's wife noted that the appellant is always watchful in public places and that a loud noise, a strange-sounding voice, a smell or a view out a window will trigger an anxiety attack. She reported that he would not go to some family functions. She also noted that the appellant's personal habits are sometimes "slack" and that he says that if he is staying home he does not need to shower, shave, or change his clothes. The appellant's brother and sister-in-law also reported that he has seen the appellant experience panic attacks. In a July 2010 private medical opinion, M.L.C., M.D., opines that the appellant's PTSD has been completely disabling since 2002 when he was last capable of working full time. Dr. M.L.C. indicated that he reviewed the medical evidence, and lay statements, and examined the appellant. The Board notes that as the July 2010 private medical opinion and examination are dated two years following the period on appeal, prior to January 8, 2008. Thus, the Board finds the appellant's statements at the March 2000, December 2000 and November 2003 VA examination reports to be more probative than the appellant's statements, as reported in the July 2010 private medical opinion. The opinion reflects that the appellant stated that he left his occupation due to his symptoms of PTSD, which had become so profound that he could not function on the job site. This statement is inconsistent with the evidence of record more contemporaneous to July 2002, such as his SSA records, which indicate the appellant stopped working due to his arthritis. The appellant described flashbacks, nightmares, hypervigilance, social isolation, and an inability to tolerate any other human contact, symptoms which were noted in the evidence of record prior to January 8, 2008. In an April 2011 private medical opinion, Dr. M.L.C. again opined that the appellant's PTSD had left him totally disabled since the early 1990s and unemployable since 2002. The appellant had GAF scores of 50 at the March 2000, December 2000, and November 2003 VA examinations. As noted above, a GAF score of 41 to 50 indicates the examinee has serious symptoms or a serious impairment in social, occupational, or school functioning. The March 2000 VA examiner found the appellant had PTSD of a moderate degree, characterized by depressed mood, with disturbed sleep, nightmares, depression, flashbacks, anger, and poor control of anger. The VA examiner noted that the appellant had a GAF score of 50 resulting in occupational and social impairment with reduced reliability and productivity due to his symptoms of panic attacks, impaired judgment, impaired abstract thinking, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The December 2000 VA examiner found that the appellant had PTSD of a moderate degree with a GAF score of 50. His depression was not bad enough to include suicidal thoughts. The VA examiner noted that he was able to maintain personal hygiene and basic activities, although his level of activity in the household was marginal. Based upon the above evidence, the Board finds that a 70 percent evaluation is warranted for the appellant's service-connected PTSD, for the period from March 23, 2000 through January 7, 2008. As discussed above, the appellant had occupational and social impairment with deficiencies in most areas. He had symptoms of panic and depression, impaired impulse control, spatial disorientation, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective social relationships. Moreover, the appellant had GAF scores of 50, indicating serious symptoms of PTSD. The Board recognizes that the veteran's PTSD symptomatology has not demonstrated all the criteria for a 70 percent rating. However, as stated in 38 C.F.R. § 4.21, it is not expected that every single symptom within a set of diagnostic criteria be exhibited. The appellant had normal speech, denied suicidal ideation and did not have obsessional rituals. Nevertheless, with resolution of any doubt in favor of the appellant, the Board finds the appellant's overall disability picture is more nearly approximated by a 70 percent rating for the period from March 23, 2000 through January 7, 2008. 38 C.F.R. §§ 4.3 and 4.7. To achieve the next-higher 100 percent rating under Diagnostic Code 9411, the evidence must show 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. The Board finds that the overall weight of the evidence fails to reveal occupational and social impairment of such severity as to allow for a finding that the appellant's disability picture prior to January 8, 2008, was more analogous to the next-higher 100 percent rating under Diagnostic Code 9411. Indeed, the appellant had been married to his wife since 1973. At the March 2000 VA examination, he reported that he had one close friend. The May 2010 letter from his foster brother indicates that they see each other every year and vacation and fish in Ohio. In his April 2011 opinion, Dr. M.L.C. stated that the appellant consistently described having persistent flashbacks, hypervigilance and bizarre behavior in the presence of other people, which would qualify as "gross impairment in thought processes or communication." However, on VA examination in March 2000, December 2000 and November 2003 there is no evidence of gross impairment in thought processes or communication. The appellant was oriented to person, place and time during the examinations. The appellant's memory was normal. At the December 2000 VA examination, the VA examiner noted that the appellant occasionally responded with some appropriate humor as they discussed things. Similarly, the appellant's VA treatment records do not indicate that he had gross impairment in thought processes or communication. The evidence does not indicate the appellant had grossly inappropriate behavior. The appellant was able to work until July 2002, and the contemporary evidence of record indicates that he retired due to physical problems. At the November 2003 VA examination, the appellant reported that he began to have difficulty standing up due to his arthritis, and he filed for disability. A May 2002 psychiatric review record for the appellant's application for SSA benefits reflects that the appellant's PTSD did not cause total occupational and social impairment. The examiner noted that the appellant's PTSD had a mild restriction on activities of daily living. The PTSD caused mild difficulties in maintaining social functioning and mild difficulties in maintaining concentration, persistence or pace. There were no episodes of decompensation. The examiner noted that the appellant's symptoms were not severe. A November 2006 VA treatment record indicates that the appellant reported that his mood had improved and he recently enjoyed riding a bike with a grandson. He also reported that his anger control had improved. The VA staff psychiatrist noted that the appellant was obviously thinner and happier, and had a more animated affect. There was no suicidal ideation and his judgment was excellent. The appellant's statements indicate that he may have experienced occasional auditory hallucinations. As noted above, at the March 2000 VA examination, the appellant denied any auditory hallucinations, but reported occasionally hearing the voice of his mother who died two years ago calling his name. At the November 2003 VA examination, the appellant also reported that he often hears people talking at night. However, the appellant does not have any other symptoms of a 100 percent disability rating, prior to January 8, 2008. Moreover, his reported GAF score of 50 is consistent with no more than serious impairment in social and occupational functioning. The March 2000 and December 2000 VA examiners found the appellant had PTSD of a moderate degree. The Board has considered the July 2010 and April 2011 medical opinions of Dr. M.L.C., who opined that the appellant has been totally disabled due to PTSD since the early 1990s. However, the Board finds that the evidence of record, including the VA examinations, VA treatment records, and SSA records, from prior to January 8, 2008, is more probative and persuasive as it is contemporaneous to the period on appeal. The overall evidence prior to January 8, 2008, indicates the appellant had severe symptoms of PTSD, but it does not indicate that he had total occupation land social impairment due to PTSD. While the appellant is competent to report the symptoms he experiences, and the Board finds him credible in this regard, except where in contrast to objective clinical findings, the reported symptoms are consistent with the assigned schedular evaluation. In sum, the weight of the available evidence demonstrates that the appellant's service-connected PTSD has warranted a 70 percent rating, but no higher, for the period from March 23, 2000 through January 7, 2008. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular Consideration The Board has also considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet.App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet.App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected PTSD is inadequate. A comparison between the level of severity and symptomatology of the appellant's PTSD with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the appellant's disability level and symptomatology. Further, the appellant has not alleged that the schedular evaluation is inadequate. Therefore, the available schedular evaluations for that service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, 22 Vet.App. at 115. III. TDIU The appellant claims that he is unable to work due to problems associated with his service-connected disabilities, specifically his service-connected PTSD, and that a TDIU is warranted. For the reasons that follow, the Board agrees. Legal Criteria According to the law, entitlement to a TDIU requires evidence of service-connected disability so severe that it is impossible for the veteran in particular or an average person in general, to follow a substantially gainful occupation. 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 nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations indicate that when a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In addition to the foregoing, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. Marginal employment is not considered substantially gainful employment. Id. A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16(b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The Board notes that although the appellant has been assigned a schedular evaluation of 100 percent for PTSD, effective from January 8, 2008, the claim for TDIU remains valid. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid for the period from January 8, 2008, where a total schedular disability rating is already in effect, the decision in Bradley recognizes that a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation. Analysis In the present case, service connection is currently established for PTSD with alcohol abuse, assigned a 70 percent rating in the decision above for the period from March 23, 2000 through January 7, 2008 and rated as 100 percent disabling from January 8, 2008; residuals of a shell fragment wound of the dorsum right hand, rated as 10 percent disabling; a deviated septum with headaches, rated as 10 percent disabling; residuals of a right ankle sprain, rated as 10 percent disabling; residuals of a shell fragment wound of the right shoulder, rated as noncompensable; residuals of a shell fragment wound of the left thigh and buttocks, rated as noncompensable; and malaria, rated as noncompensable. The appellant's combined rating is 100 percent. 38 C.F.R. § 4.25. Thus, he meets the minimum schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). However, the evidence must still show that he is unable to pursue a substantially gainful occupation due to his service-connected disabilities. As such, the Board will now review the evidence of record to see if it demonstrates that the appellant is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. On his TDIU application (VA Form 21-8940), received in February 2010, the appellant indicated that he had a 12th-grade education. The appellant indicated that he last worked at a factory in July 2002 and that he left his job because of his disability. Records from the Social Security Administration (SSA) indicate that he is receiving SSA disability benefits for osteoarthritis and allied disorders, and obesity. (See September 2002 Disability Determination). The January 8, 2008 VA psychiatric examination report reflects that the appellant has had severe symptoms of PTSD since the 1990s. On examination, the VA examiner found that the appellant had sleep impairment, obsessions and order compulsions, two or three panic attacks a week, and poor impulse control. The appellant did not have hallucinations, homicidal or suicidal thoughts, or problems with activities of daily living. His memory was normal and he maintained a minimum personal hygiene. The report reflects that the appellant had chronic, severe PTSD. The VA examiner noted that the appellant did not meet separate criteria for anxiety and depression and that these symptoms are part of his PTSD diagnosis. The report reflects that the appellant's psychosocial functioning has deteriorated since his last VA examination. He has become more depressed, and more withdrawn. He continued to react with anger and became involved in repeated verbal confrontations with his extended family. The appellant was noted to have poor family relations and no socialization outside of the family. The report also noted the appellant had repeated work related problems in past employment settings. The January 8, 2008 VA examiner specifically found that there was total occupational and social impairment due to PTSD signs and symptoms, noting that the appellant had frequent flashbacks, poor concentration, and social interactions filled with hostility. The examiner consequently found the appellant was not capable of maintaining gainful employment. The appellant had a GAF score of 49. In a July 2010 private opinion, M.L.C., M.D., opined that the appellant's PTSD had completely disabled the appellant since at least July 2002. Dr. M.L.C. noted that the appellant chose to work the third shift at the factory to avoid any interactions with other people, which was a classic sign and symptom of PTSD. Dr. M.L.C. noted that it was originally described that the appellant left his position in a container factory secondary to arthritis. On more detailed questioning, the appellant described the actual reasons he left his occupation were more associated with his symptoms of PTSD, which had become so profound that he could not function on his job site. The appellant described, although he had significant disability from arthritis, the pervasiveness of his flashbacks, nightmares, hypervigilance, social isolation and the inability to tolerate any other human contact lead to his retirement, and subsequent profound isolation from others. Dr. M.L.C. stated that the appellant's mental status examination was profoundly impaired, marked by speech that was decreased in rate tone and volume. The appellant's mood was depressed and tearful. His thought content was free of any suicidal or homicidal ideation and there was no evidence of psychosis. The appellant had circumstantial, tangential and obsessive thinking regarding his active duty service. Dr. M.L.C. opined that there is no question he has PTSD that has left him totally disabled for an extended period of his life, at least since the early 1990s, and he was totally unemployable secondary to PTSD since at least 2002. In an April 2011 opinion, Dr. M.L.C. stated that during the timeframe of 2004 through 2008, but in reality far earlier, the appellant was experiencing persistent recurrent and intrusive distressing recollections of events associated with his active-duty service including atrocities of war, severe psychological and physical reactivity, social isolation, and dissociation, all severe symptoms of PTSD. He opined that the appellant was not able to function on any job site. Dr. M.L.C. noted that the appellant is consistently described as having persistent flashbacks, nightmares, hypervigilance, and bizarre behavior in the presence of other people, which would qualify as "gross impairment in thought processes or communication." In addition, the appellant had persistent thoughts of violence, irritability, anger and threatening behavior. Furthermore, there was evidence of dissociation which is now known to be specifically associated with PTSD in its more severe forms. Therefore, Dr. M.L.C. found that the appellant would meet the criteria associated with persistent issues with harming himself and others, and having intermittent dissociation. He also noted that there was ample documentation of his profound social isolation, and his inability to engage with others in a reasonable and appropriate fashion. Dr. M.L.C. stated that the appellant's activities of daily living suffered significantly secondary to this. Dr. M.L.C. also opined that he did not agree with the appellant's GAF scores in VA examination reports from 1998, 2000, and 2003, which assigned a GAF score of 50. He opined that the appellant's GAF score was far closer to 35 or 40 since his discharge from active-duty service. There are no recent examination reports regarding the status of the appellant's other service-connected disabilities. However, for the reasons discussed below, the Board finds that appellant is entitled to a TDIU based on his service-connected PTSD from January 8, 2008. The Board notes that marginal employment is not to be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The standard, as in this case, is whether a particular job is realistically within the physical and mental capabilities of the claimant. See Moore v. Derwinski, 1 Vet. App. 356 (1991) (noting that substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage). The Board notes that the veteran has received no education beyond high school, and it appears that any gainful employment he could be engaged in, such as working in a factory, would involve at least some contact with people. The competent clinical evidence, including the January 8, 2008 VA examination report and July 2010 and April 2011 private opinions, indicates that the appellant would be unable to perform such duties or employment with comparable duties due to the symptoms of his service-connected PTSD. Further, there is no contradicting competent evidence in the file indicating that the appellant is capable of performing even general employment, and what such employment would entail. In conclusion, the appellant is currently service-connected for multiple disabilities, including PTSD, rated as 100 percent disabling. The appellant is also unemployed, and has been since July 2002. The evidence shows that he stopped working because of osteoarthrosis and obesity. However, the competent evidence dated from January 8, 2008 indicates that the appellant's symptomatology from his service-connected PTSD renders him unable to follow a substantially gainful occupation. The Board notes that the appellant is to be afforded every reasonable doubt. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In this case, the Board has resolved all reasonable doubt in the appellant's favor. Accordingly, a total disability rating based upon individual unemployability due to service-connected disabilities is warranted from January 8, 2008. ORDER Entitlement to a 70 percent evaluation for PTSD, for the period from March 23, 2000 through January 7, 2008, is granted. Entitlement to a TDIU from January 8, 2008 is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs