Citation Nr: 1102982 Decision Date: 01/24/11 Archive Date: 02/01/11 DOCKET NO. 06-32 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD), to include entitlement to total disability rating due to individual unemployability (TDIU rating). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran served on active duty from December 2003 to June 2005. He is the recipient of the Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In November 2009, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development, and it now returns to the Board for appellate review. Finally, while the appeal was pending, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part and parcel of an increased-rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating in this circumstance when the TDIU issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, the Veteran has not filed a claim for TDIU; however, the record does suggest that the Veteran's service-connected PTSD interferes with his employability. Therefore, in light of the Court's decision in Rice, the VA must adjudicate that issue as part of the claim for an increased rating for the service-connected disabilities. Id. See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Bowling v. Principi, 15 Vet. App. 1 (2001). FINDINGS OF FACT 1. Prior to October 30, 2006, the Veteran's service-connected PTSD was manifested by mild occupational and social impairment due to chronic sleep impairment, depressed mood, and blunted affect, without impairment of memory, speech, thought processes, insight, or judgment. 2. From October 30, 2006 onward, the Veteran's service-connected PTSD is manifested by difficulty sleeping, depressed mood, lack of motivation, panic attacks, isolationist and avoidant behaviors, loss of impulse control, and a Global Assessment of Functioning (GAF) score between 40 and 55 resulting in moderate to severe occupational and social impairment. 3. Service connection is in effect for PTSD, evaluated as 70 percent disabling; traumatic arthritis of the left ankle, status post anterior cruciate ligament of the left knee, tinnitus, and headaches, each evaluated as 10 percent disabling; and right ankle arthritis, and scars of the face and head, each evaluated noncompensably. 4. The Veteran is unable to obtain and maintain substantially gainful employment due solely to service-connected disability as of March 31, 2010. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for service-connected PTSD have not been met prior to October 30, 2006 onward. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9411 (2010). 2. The criteria for an initial rating of 70 percent, but no greater, for service-connected PTSD have been met from October 30, 2006 onward. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9411 (2010). 3. The criteria for entitlement to a TDIU rating have been met as of March 31, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Stegall Considerations The Board observes that this case was remanded by the Board in November 2009. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the November 2009 remand was to achieve further development of the claim, namely to obtain up-to-date VA treatment records and to schedule another VA examination. A review of the post-remand record shows that VA treatment records through August 2010 have been added to the claims file, and that the Veteran was afforded another VA examination in April 2010. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the November 2009 remand, and that the Board may now proceed with adjudication of the claim. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA requires that VA inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353- 23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable AOJ decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent a VCAA notification letter in March 2004 with regard to his service connection claims, prior to the initial unfavorable AOJ decision issued in December 2005. In March 2009, a letter specific to his initial rating claim was issued. The Board observes that the pre-adjudicatory VCAA notice informed the Veteran of the type of evidence necessary to establish service connection, how VA would assist him in developing his claim, and his and VA's obligations in providing such evidence for consideration. With regard to the initial rating claim, such claims are generally considered to be "downstream" issues from the original grant of benefits. VA's General Counsel issued an advisory opinion holding that separate notice of VA's duty to assist the Veteran and of his concomitant responsibilities in the development of his claim involving such downstream issues is not required when the Veteran was provided adequate VCAA notice following receipt of the original claim. See VAOPGCPREC 8-2003. Further, where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. See Goodwin v. Peake, 22 Vet. App. 128 (2008), citing Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). In this case, the Veteran has not alleged that he has suffered any prejudice as to the lack of pre-adjudicatory notice as to disability ratings and effective dates. Further, the Board notes that no duty to assist arises upon receipt of a Notice of Disagreement. 38 C.F.R. § 3.159(b)(3); see 73 Fed. Reg. 23353 (adding paragraph (3) under § 3.159(b). Nevertheless, the Board finds that no prejudice to the Veteran has resulted from the inadequate timing of the notice with respect to disability ratings. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). In this regard, the Board observes that, although the Veteran was not advised of how to substantiate disability ratings and effective dates until after the initial rating decision, his claim was subsequently readjudicated and a supplemental statement of the case was issued. Thus, the timing deficiency was rectified. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), citing Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. Mayfield, 444 F.3d at 1333. Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination. The Veteran's service treatment records, VA medical records, and the reports of September 2005, October 2006, and April 2010 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of his claim. The Veteran has not identified any additional, relevant records that VA needs to obtain for an equitable disposition of the claim. With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the examiners documented the Veteran's subjective complaints and medical history and evaluated the Veteran. Thereafter, in the reports, they provided information sufficient in detail and relevance to the rating criteria to allow for determination of the appropriate rating for each disability. The Board notes that the October 2006 and April 2010 VA examiners reviewed the claims file, but the September 2005 VA examiner did not. However, this fact alone does not render that examination inadequate. See Nieves-Rodriguez, 22 Vet. App. 295, 302 (2008). In rating claims, it is primarily the symptomatology present at the examination that is most probative to the claim. As nothing suggests that the lack of a claims file resulted in the examiner documenting findings inconsistent with the medical history outlined in the claims file, the Board does not find the September 2005 VA examination to be adequate. In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. III. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2010). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. As such, the Board has considered all evidence of record in evaluating the Veteran's service-connected disability. Also, in Fenderson, 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. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, in accordance with Fenderson, the Board has considered the propriety of staged ratings in evaluating the Veteran's service-connected PTSD. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the Veteran's service-connected PTSD is currently evaluated as 30 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). The regulations establish a General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "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 only 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 Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The criteria for a 30 percent rating are: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). The criteria for a 50 percent rating are: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are: 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. The criteria for a 100 percent rating are: 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. During the appeal period, the Veteran was afforded three VA psychiatric examinations, as well as VA examinations for the purpose of assessing a claimed traumatic brain injury (TBI). Additionally, he has sought treatment at two VA hospitals for his service-connected PTSD. Relevant findings are as follows. At a September 2005 VA examination, the Veteran reported that he was starting a job in a few days. He indicated that he was not married and had no children and that his relationship with his girlfriend of three years had ended in February 2005. However, he related that he was on good terms with his parents and recently had provided support to his father after his grandfather's death. Additionally, the Veteran stated that he had a few good friends with whom he would hang out. Leisure activities included working out four times per week, watching TV, reading, and playing video games every day. The Veteran reported that he was irritable, lacked motivation, had trouble opening up to people and now kept to himself, had decreased concentration and increased distractibility, and had difficulty falling and staying asleep. The examiner observed that the Veteran was oriented, exhibited speech of regular rate and rhythm, and had good eye contact. His mood was noted to be mildly irritable, and his affect was tense. Thought process was documented as coherent and goal-oriented. The Veteran did not endorse either suicidal or homicidal ideation. Short- and long-term memory were intact, and insight and judgment were good. Additionally, the examiner found that the Veteran had meaningful relationships in his life. The examiner assigned a GAF score of 61 and stated that the Veteran's PTSD was mild and mildly affected his social and occupational functioning. At an October 2006 VA examination, the Veteran stated that he no longer trusted people and that he opened up only to family. He indicated that he and his former fiancé had broken up because of his anger problem. He also stated that he had significantly less interest in things and lacked motivation. The Veteran reported that he yelled at times and was fired from his last job for yelling at his manager. The Board notes that this employer was not the same employer with which he started working in September 2005. He related that he occasionally hit things and that he punched a hole in a wall just a few days prior and engaged in a fistfight in September 2006. The Veteran described insomnia and fitful and broken sleep. He related that his concentration was not as good as it needed to be and that his mind wandered at times. He endorsed significant hypervigilance. The Veteran denied suicidal ideation and suicide attempts, but indicated that he sometimes wished he were dead. He also denied homicidal ideation. No delusions or hallucinations were reported. Socially, the Veteran indicated that he lived with three roommates at that time and that he got along with two of them, but not with the third. He reported having two other friends he talked to on occasion. He stated that he had quit the job prior to the last because he lacked confidence. Leisure activities included working out and playing videogames. The examiner observed that the Veteran was alert and oriented times three. Eye contact was intermittent. Speech was somewhat rapid in rate, but of regular rhythm and volume. Thought processes were generally logical and goal-directed. Mood was very depressed, and affect was somewhat blunted. The examiner documented no impairment of memory and reported that insight and judgment were fairly good. The examiner diagnosed PTSD and depressive disorder not otherwise specified (NOS). He assigned a GAF score of 48 and stated that the highest GAF score in the past year was 48. The examiner concluded by saying that the Veteran was moderately, if not severely, impaired by his PTSD. At the April 2010 VA examination, the Veteran indicated that he had moved away from family and friends to live with his fiancé, but they were no longer getting along and limited their interactions, even though he still lived with her. He stated that he talked to his family and some friends back home. He reported working out daily, but otherwise staying home. The Veteran endorsed disrupted sleep. He described his mood as okay. He denied panic attacks. The Veteran attested to irritability and anger, which affected his social relationships and employment, social isolation and lack of motivation to meet people, and hypervigilance. In terms of employment, he reported having lost his job about a month before and that he had had been terminated from two jobs due to fighting with customers and/or supervisors. He left another position due to door-to-door selling requirements. The examiner noted speech and affect within normal limits, appropriate eye contact, adequate grooming, and goal-directed thought processes. He found no evidence of psychosis or obsessive behaviors. Memory was intact. The examiner stated that the Veteran's PTSD symptoms cause moderate to severe impairment of social and work functioning and that the symptoms were exacerbated when the Veteran relocated. He assigned a GAF score of 52. In addition to the above, the Veteran has submitted an August 2010 letter from two of his current treating professionals. They reported similar symptoms as the April 2010 VA examiner and stated that the treatment team viewed the Veteran as having minimal ability for sustained activity and functioning and severely impaired resources for coping with stress. They documented a GAF score of 40. A GAF score of 41-50 contemplates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or social functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 reflects 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). A GAF score of 61-70 contemplates some 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 functioning pretty well, has some meaningful interpersonal relationships. A GAF score of 71-80 indicates that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). While a GAF score 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, the GAF scores assigned in a case are not dispositive of whether overall improvement has been established; rather, they must be considered in light of the actual symptoms of the Veteran's disorder. See 38 C.F.R. § 4.126(a). In this regard, the Board notes a December 4, 2009 VA treatment record in which a GAF score of 75 was assigned. This score was assigned by a medical resident whose name is not otherwise associated with the Veteran's treatment, and the treatment note indicates that the Veteran was working to deal with his symptoms on his own and was attempting a positive attitude, which would support a higher GAF score. However, this treatment note is an aberration with respect to the record as a whole. Therefore, the Board does not find that the Veteran's symptoms did not undergo a permanent improvement as of December 2009. Based on the above, the Board concludes that a rating in excess of 30 percent for service-connected PTSD is not warranted prior to October 30, 2006, the date of the VA examination. However, from that date forward, the Board finds that the evidence is in equipoise, more closely approximating a rating of 70 percent. Prior to October 30, 2006, the Veteran's symptoms reflected occupational and social impairment, but he had good family relationships, as well as friends with whom he interacted. His speech, thought processes, insight, memory, and judgment were without deficit, and he did not exhibit panic attacks. Thus, he did not display any symptoms typical of a rating in excess of 30 percent before that date. However, as of the October 2006 VA examination, the Veteran had decompensated, experiencing moderate to severe impairment due to his PTSD, with depressed mood, restriction of social activities, increased lack of motivation, loss of concentration, and negative interpersonal relationships. He had lost a job due to yelling at his manager, had loss of impulse control, as evidenced by yelling at his manager, which resulted in losing his job, getting involved in a fist fight, and punching a hole in the wall. For these reasons, the Board assigns a 70 percent rating for service- connected PTSD, effective October 30, 2006. A rating in excess of 70 percent is not warranted, however, as the Veteran's impairment did not include an inability to maintain personal hygiene, loss of direction in speech or thought processes, suicidal or homicidal ideations, obsessive rituals, or psychotic episodes, which are symptoms that would support a rating in excess of 70 percent. He also had some, if few, social relationships with family and friends. Accordingly, the Board assigns a rating no greater than 70 percent from October 30, 2006 onward. The Board has given consideration to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4 (2010), as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, a review of the record fails to reveal any functional impairment associated with the Veteran's disability to warrant further consideration of alternate rating codes. Additionally, the Board acknowledges that an extra-schedular rating is a component of a claim for an increased rating. Barringer v. Peake, 22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). If so, factors for consideration in determining whether referral for an extra- schedular rating include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, citing 38 C.F.R. § 3.321(b)(1) (2008). In the present case, the Board finds no evidence that the Veteran's service-connected PTSD presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The Veteran's symptoms are wholly contemplated by the schedular criteria, and nothing in either the subjective or objective evidence suggests that these criteria are insufficient to compensate for the impairment of function the Veteran experiences due to his service-connected disabilities. Therefore, the Board finds that referral for an extra-schedular rating is not necessary. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the competent evidence does not support higher ratings for service-connected PTSD, the preponderance of the evidence is against the Veteran's claim for initial ratings in excess of the 30 percent and 50 percent assigned for this disability. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal, and his service connection claims must be denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7. TDIU rating As indicated in the Introduction, the Board has jurisdiction to consider a TDIU rating. A total disability evaluation may be assigned where the schedular evaluation is less than total when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2010). For purposes of calculating the percentage requirements of one 60 percent disability, or one 40 percent disability, the following disabilities will be considered one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. "Substantially gainful employment" is not currently defined in VA regulations. For a veteran to prevail on a claim based on unemployability, the record must reflect some factor which takes the claimant's case outside the norm for such a veteran and not just that the Veteran is unemployed or has difficulty finding employment. Marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a). For purposes of 38 C.F.R. § 4.16(a), marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. However, consideration shall be given in all claims to the nature of the employment and the reasons for termination. Id. Service connection is in effect for PTSD, now evaluated as 70 percent disabling; traumatic arthritis of the left ankle, status post anterior cruciate ligament of the left knee, tinnitus, and headaches, each evaluated as 10 percent disabling; and right ankle arthritis, and scars of the face and head, each evaluated noncompensably. Thus, the Veteran has a disability rated as at least 60 percent disabling, and he meets the threshold criteria for a TDIU rating. The record reflects that the Veteran has had difficulty obtaining and maintaining employment since his discharge from service. Additionally, VA examination reports and treatment records reveal that the Veteran's PTSD has been the sole impediment to his employability, as his loss of impulse control has led him to fight with supervisors and customers, and he also lacked confidence to seek employment at times. Further, the August 2010 letter from his treatment providers states that the Veteran's treatment team views him as only minimally able to sustain activity functioning and severely impaired ability to cope with stress. Overall, the record demonstrates that the Veteran is, in fact, unemployable. The Veteran was reportedly last employed in March 2010, as documented by the April 2010 VA examiner. Therefore, resolving all doubt in the Veteran's behalf the Board concludes that the competent evidence supports a TDIU rating as of March 31, 2010. ORDER An initial rating in excess of 30 percent for service-connected PTSD is denied prior to October 30, 2006. An initial rating of 70 percent, but no greater, for service- connected PTSD is granted from October 30, 2006. Entitlement to TDIU rating is granted from March 31, 2010, onward. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs