Citation Nr: 1243625 Decision Date: 12/20/12 Archive Date: 12/27/12 DOCKET NO. 04-00 112A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD), to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel WITNESS AT HEARING ON APPEAL Veteran INTRODUCTION The Veteran had active duty service from August 1966 to August 1968. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2003 Decision Review Officer (DRO) decision in which the RO awarded service connection and assigned an initial 50 percent rating for PTSD, effective October 7, 2002. This effective date was later corrected to be November 7, 2002 in an April 2004 DRO decision. In June 2004, the Veteran filed a notice of disagreement (NOD) with the assigned disability rating for PTSD. A statement of the case (SOC) was issued in February 2005 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2005. In March 2006, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A hearing transcript has been associated with the claims file. As the Veteran disagreed with the initial rating assigned following the award of service connection for PTSD, the Board characterized this claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In May 2006, the Board, inter alia, denied the claim for an initial rating in excess of 50 percent for PTSD. The Veteran subsequently appealed the May 2006 Board decision to the United States Court of Appeals for Veterans Claims (Court). In March 2008, the Court granted the Joint Motion for Remand filed by representatives for both parties, vacating the portion of the Board's decision which denied an initial rating in excess of 50 percent for PTSD, and remanding the claim to the Board for further proceedings consistent with the Joint Motion. In September 2009, the Board, inter alia, remanded the claim for a higher, initial rating for PTSD to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for further action, to include additional development of the evidence and for consideration of a higher rating on an extra-schedular basis. After completing the requested development, the AMC continued to deny the claim and returned the matter on appeal to the Board for further consideration. In October 2010, the Board, inter alia, denied the claim for an initial rating in excess of 50 percent for PTSD, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b) (2011), and remanded the claims for service connection for bilateral hearing loss and for a TDIU due to service-connected PTSD, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b)(2011), to the RO, via the AMC, for additional development. The Veteran appealed the October 2010 Board decision to the Court. In May 2011, the Court granted the Joint Motion for Remand filed by the representatives of both parties, vacating the portion of the Board's decision which denied an initial rating in excess of 50 percent for PTSD and remanding the claim to the Board for further proceedings consistent with the Joint Motion. In December 2011, the Board, inter alia, remanded the claim for a higher, initial rating for PTSD to the RO for further action, to include the additional development of the evidence and consideration of TDIU due to service-connected PTSD, to include an extra-schedular basis. After accomplishing further action, the RO continued to deny each claim (as reflected in the August 2012 supplemental statement of the case (SSOC)) and returned the matters on appeal to the Board for further consideration FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. Since the November 7, 2002, effective date of the award of service connection, the Veteran's psychiatric symptoms have included chronic sleep impairment, intermittent flashbacks that were reported to not be serious or severe in nature, persistent irritability, anger outbursts, assaultive behavior, depression, anxiety, hypervigilance, paranoia and auditory hallucinations; collectively, these symptoms are indicative of no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. The schedular criteria are adequate to rate the Veteran's PTSD at all times pertinent to this appeal. 4. As of November 7, 2002, the Veteran's service-connected PTSD has met the percentage requirements for the award of a schedular TDIU, and competent opinion evidence on the question of whether the nature and severity of the Veteran's service-connected PTSD prevents him from obtaining and retaining substantially gainful employment is, at least, in relative equipoise. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial 70 percent but no higher rating for PTSD, from November 7, 2002, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU due to PTSD, from November 7, 2002, are met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Initially, with respect to the claim for a TDIU due to PTSD, given the favorable disposition of this claim, the Board finds that all notification and development action needed to fairly adjudicate the claim has been accomplished. As for the remaining claim on appeal for a higher rating for PTSD, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, after the award of service connection for PTSD, and the Veteran's disagreement with the initial rating assigned, a March 2009 letter set forth the criteria for higher ratings for PTSD. The March 2009 letter also provided the Veteran with information pertaining to what information and evidence was needed to support a claim for a higher rating for PTSD, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. Further, this letter provided general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the above-described notice, the August 2012 SSOC reflects readjudication of the claim for a higher rating. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). In addition, the Veteran's representative explicitly waived any VCAA notice error in a November 2011 statement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of the Veteran's VA outpatient treatment records, to include Vet Center records, the reports of the VA examinations and the Social Security Administration (SSA) records. Also of record and considered in connection with the appeal is the transcript of the March 2006 Board hearing, along with various written statements provided by the Veteran, his current attorney, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with claim for a higher rating for PTSD, prior to appellate consideration, is required. A December 2009 letter to the Veteran seeking clarification as to whether he had raised an informal claim for a TDIU and requesting that he complete an appropriate authorization form to allow VA to obtain pertinent medical records was provided to the Veteran in response to the Board's September 2009 remand. In addition, the Veteran's updated VA treatment records and March 2012 VA examination were obtained as requested by the Board in its December 2011 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In a December 2011 statement, the Veteran's attorney argued that the Board's December 2011 remand requesting updated VA treatment records and a new VA examination was "absolutely unlawful." Specifically, he asserted that the Veteran had submitted substantial lay and medical evidence in support of his claim, including an October 2011 private employability evaluation, and the Board arbitrarily and capriciously discounted the evidence submitted by the Veteran. VA is obligated to provide a contemporaneous medical examination to a claimant. See 38 C.F.R. § 5103A; 38 C.F.R. § 3.159. See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination); and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous"). However, a review of the record reveals that the most recent VA examination was conducted in June 2009 and that the most recent VA treatment records were also dated through June 2009, more than two and a half years prior to the Board's December 2011 remand. The October 2011 private employability evaluation submitted by the Veteran contained his reports of hallucinations, which were not reported in the June 2009 VA examination, and noted that the Veteran's girlfriend had recently called the police due to the Veteran's threatening actions. Moreover, no mental status examination was conducted by the October 2011 evaluator and such information is necessary to properly adjudicate the Veteran's claim for an increased rating for PTSD. This argument is, therefore, without merit. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Factual Background A July 2002 Vet Center intake evaluation reflects the Veteran's reports of sleep difficulties, social isolation and anger difficulties. He indicated that he had a "good relationship" with his adult son and that he was currently self-employed as this work allowed him to "stay away" from stress. Suicidal or homicidal thoughts were denied. On mental status examination, he was friendly and cooperative with appropriate speech and normal memory function. His appearance was noted to be neat, his affect appropriate and his judgment good. Delusions, hallucinations or disorganized thinking were not found on examination. An October 2002 Vet Center treatment summary reflects the Veteran's complaints of disruptive thoughts related to his combat, increased social isolation and extreme anger. He reported having two adult children, that he still had contact with his children and that he "got along well" with them. He also reported being self-employed as an artist and designer for furniture and lighting due to increased stress in dealing with other people. Mental status examination found his general presentation to be slightly depressed with anxiety. Recent extreme outbursts of anger were noted by the provider but not detailed. Following this examination, a GAF of 50 was assigned and the provider noted that the Veteran had increased difficulty with interpersonal relationships. An October 2002 Vet Center treatment note reflects that the Veteran reported striking his girlfriend "in a fit of rage." His mood was noted to be slightly dysphoric with congruent effect and he was found to be well groomed in appearance. An August 2003 private psychological evaluation notes the Veteran's complaints of agitation around others and difficulty controlling his anger with others, causing him to isolate. Intermittent suicidal and homicidal ideations were reported by the Veteran. He also reported difficulty working, sleeping and concentrating and that he was anxious much of the time. Mental status examination found his appearance to be clean and organized, his speech to be congruent and appropriate and his affect to be extremely tense. Memory was found to be good for recent and remote events. The provider noted that the Veteran had developed a guarded exterior but became overwhelmed with emotions, which he had tried to suppress, when discussing his military trauma. The provider assigned a GAF of 45 following the examination. A September 2003 VA treatment note indicates that the Veteran's girlfriend did not stay with him at night due to his anxiety and hyperarousal symptoms. He reported checking the perimeter of his home, which was located on a secluded property, nightly with a loaded gun. Current suicidal and homicidal ideations were denied by the Veteran. The report of a September 2005 VA psychiatric examination includes notations noted that the Veteran had a "great deal" of assaultive feelings, but no such behavior, and that he slept with a 38 revolver under his pillow. Current symptoms were reported to include rare nightmares, rare flashbacks, intrusive thoughts, irritability, temper, road rage under control, intrusive thoughts, irritability, anger/temper problems and isolation. He reported conducting perimeter checks on his property on a regular basis, and that he almost struck his girlfriend with a telephone three or four months ago but that he was on "good terms" with her and that he had no friends. Depression, suicidal ideations, a history of suicide attempts and psychotic symptoms were denied by the Veteran. He reported being unemployed and that he rarely received a request to design furniture. Mental status examination found him to be appropriately groomed, pleasant, friendly and cooperative as well as oriented to time, place and person. Memory, judgment, insight and cognition were intact. There were no memory problems, panic attacks, sleep problems or personality disorders found on examination. The examiner found that his mental status was essentially normal. Following this examination, a GAF of 60 was assigned with the examiner noting that the Veteran did not work due to irritability and anger which became evident during business interactions. During the March 2006 Board hearing, the Veteran testified that he did not get along with others and that he preferred to be alone. He never held a job for long and had difficult interacting with clients when he worked as a dental technician. He had contemplated suicide in the past. He had anger outbursts, including incidents of road rage, and described an incident in which he struck his neighbor's dog, resulting in a sprain to three of his fingers. He slept with a weapon close to him and his prescribed medication allowed him to sleep. An October 2006 VA treatment note reflects the Veteran's reports that he scared his significant other but that he "never" got physical with her or others. He estimated that his condition was "75-80" percent improved with medication and counseling and that his motivation was good but that he did not finish projects without getting bored. Mental status examination found his memory and concentration to be good and his insight and judgment to be fair. He was noted to be casually dressed and groomed. The provider noted the presence of minor paranoia in that the Veteran had cameras watching his house and he locked his house in multiple ways. A January 2007 VA treatment note reflects the Veteran's reports of improved concentration as well as improved sleep. He also reported that he "goes off" quickly and that he drank too much alcohol. Thoughts of death or suicide ideation, grandiose thinking, an elevated mood or an irritable mood were not found by the provider. A GAF of 65 was assigned. An April 2008 VA treatment note reflects the Veteran's reports of increased difficulties with his girlfriend due to her complaints that he no longer paid attention when he drove, that he did not shower as often as he used to and that he was not finishing his projects. He also reported that he still walked the perimeter of his property at night, that his last flashback occurred two months ago due to increased training at a nearby military base and that he went to church fairly often. Suicidal ideations, homicidal ideations, visual hallucinations, auditory hallucinations were denied. On mental status examination, his memory, concentration, energy, insight and judgment were good. Stream of thought was found to be linear and goal directed while affect was found to be appropriate, responsive and attentive. He was noted to be casually dressed and groomed. The provider noted the continued presence of paranoia symptoms as the Veteran still checked cameras and locks and that he was experiencing rare, mild flashbacks that did not cause significant distress. A July 2008 VA treatment note documents the Veteran's reports of threatening his girlfriend with a knife during a recent altercation but that he could not recall this altercation. Other reported symptoms included irritability, anger and an inability to complete a project. Thoughts of death, suicide ideation, elevated mood, irritable mood and grandiose thinking were not found. A GAF of 65 was assigned. An October 2008 VA treatment note reflects the Veteran's reports of being able to control his anger. Mental status examination found him to be adequately dressed and groomed and his attitude to be cooperative and friendly. He was oriented to person, place and time and his cognitive functioning was found to be intact. Memory, recall and insight were found to be good, mood was found to be euthymic and affect was found to be appropriate. Speech was of normal rate and rhythm, thought processes were found to be coherent and judgment was found to be intact. A GAF of 65 was assigned. The report of a June 2009 VA examination references the Veteran's continued reports of irritability, anger and social isolation. He reported experiencing anger and annoyance on a daily basis, that such episodes became severe three to four times per month, that he overreacted to certain incidents and that his road rage incidents had resulted in a physical alteration on at least one occasion. He detailed a recent incident in which he developed shortness of breath and was scheduled to undergo an exercise treadmill test to investigate whether his symptoms were anxiety or cardiac disease. Auditory hallucinations on five occasions over the past few years, consisting of someone calling his name or rumblings, were reported. He also reported that his sleep and mood had improved with his use of prescribed medications and that his relationship with his girlfriend was "generally quite good." Although he reported social isolation and that he avoided crowds, he also indicated that he played tennis with others. Suicidal ideation, a history of suicide attempts, anhedonia, a recent history of assaultiveness or panic attacks were denied by the Veteran. Mental status examination conducted by the June 2009 VA examiner revealed that the Veteran was well-groomed, alert, pleasant and interactive with good eye contact. Speech showed normal volume and prosody while his mood was found to be good. Affect was found to be broad, reactive and congruent to content. Thought processes were linear with tight associations. The examiner noted no evidence of psychomotor agitation, suicidal ideations, homicidal ideations, delusional material or persistent auditory hallucinations. Following this examination, a GAF of 68 was assigned. The examiner noted that the Veteran had ongoing symptoms of PTSD but that there was only mild dysfunction which did not interfere with his overall ability to perform in the psychosocial arena. A June 2009 VA treatment note indicates that, prior to being prescribed medication, the Veteran used to check the perimeter of his house with a gun in hand. He continued to report auditory hallucinations in that he heard two men talking and heard his name called. Mental status examination found him to be casually dressed and groomed. The provider noted that the Veteran's PTSD was in good control but that he continued to falter due to "drinking issues." An October 2009 VA treatment note documents that the Veteran reported arguing with his girlfriend over his drinking. He reported throwing a glass onto the floor and his girlfriend sought assistance from a neighbor. Suicidal tendencies were denied by the Veteran. A GAF of 65 was assigned and the provider noted that the Veteran had significant relationship problems which were associated with his alcohol intake. A March 2011 VA treatment note reflects the Veteran's reports of becoming irate, and wanting to have a physical altercation, after someone cut in line at the gas station. He also reported feeling very angry over the past two to three weeks. A GAF of 65 was assigned and the provider opined that the Veteran had increased irritability and problems with his sleep. An August 2011 VA treatment note references the Veteran's reports that his girlfriend had called the police a couple of times in the past two months due to their disagreements. He reported that, less than one month ago, the police came to his house in riot gear and advised him to "just get along" with his girlfriend. He expressed a desire to move from their home but did not have the finances to do so. A GAF of 65 was assigned by the provider. The report of an October 2011 private employability evaluation reflects that the Veteran reported attending church but rarely other events. His reported symptoms included sleep difficulties, being easy to anger, having uncontrolled anger, auditory hallucinations for the past seven to eight months, visual hallucinations and being unable to concentrate for more than 15 to 30 minutes. He reported that he was capable of being "briefly charming" with others but that he was unable to sustain this for any period of time as he was easily offended and lost his temper frequently. His girlfriend reported that she had called the police recently due to the Veteran's threatening behavior and that it took extraordinary effort to "get along" with him. Occupational history included work as a sales associate or representative, dental lab technician and a furniture/lighting designer; he had no significant periods of employment since 1998. The evaluator noted that the Veteran's work situations "broke down" due to friction with others, the amount of pressure associated with work demands and his suspiciousness and mistrust of others. The evaluator found that the Veteran's work skills were not current or transferrable. Following this October 2011 examination and a review of the Veteran's records, which were noted to total more than 1000 pages, the evaluator opined that it was at least as likely as not that the Veteran's service-connected residual impairments primarily stemming from hearing loss and PTSD, have rendered him unable to secure or perform a substantially gainful occupation since 2002. The evaluator found that the Veteran's relevant work history did not demonstrate the acquisition of any significant skills that would be transferable to self employment nor did he have the functional ability to focus on tasks and maintain concentration for at least two hour periods or the functional ability to interact with employers, customers or supervisors. The evaluator further opined that the Veteran would not be able to obtain or sustain work, even unskilled work, that was absent social interaction, due to his symptoms. The report of a March 2012 VA examination notes that the police had been called to the Veteran's house, in response to his girlfriend's calls for assistance, a few months ago due to his purported threatening behavior. On another occasion, the police came to his house after she told a credit card company that she was afraid of him. He denied having any friends except for his girlfriend and reported a decrease in previous leisure activities such as tennis and yoga due to injuries. Current symptoms included difficulties concentrating and being easily distracted and angered. A history of suicide attempts, violence/assaultiveness, hallucinations and panic attacks were denied. Mental status examination found the Veteran's psychomotor activity, speech, thought process and thought content to be unremarkable, his affect and memory to be normal and his mood and impulse control to be good. Attention was found to be intact and he was oriented to person, time and place. The provider found that the Veteran understood that he had a problem as well as the outcome of his behavior. Inappropriate behavior or obsessive/ritualistic behavior were not found by the examiner. The examiner noted that the Veteran was able to maintain minimum personal hygiene. Following this March 2012 examination, a GAF of 65 was assigned. The examiner found that the Veteran's alcohol use was secondary to stress/anxiety and that his depressive symptoms were secondary to PTSD. The examiner opined that while the Veteran's chronic history of irritability and anger management were the primary factors in his difficulty maintaining employment, these symptoms have not been the focus of clinical treatment in the past several years and he had managed his irritability and anger effectively (i.e., no violence) through the use of skills obtained in therapy. The examiner further opined that the Veteran's PTSD symptoms were intermittent, mild, non-distressing and well-controlled on medication while his depressive symptoms were also mild, intermittent and typically in response to a stressor (i.e. interpersonal conflict with his girlfriend). A March 2012 VA Disability Benefits Questionnaire (DBQ) reflects the examiner's notation that the Veteran's treatment records dated between 2002 and 2006 did not include any GAF information and that comments indicated a positive overall response to medication interventions as well as stable symptoms. The examiner noted that there had improvement in his symptoms beginning in 2006 and his GAF of 65 had been stable since that time. Any fluctuations in symptoms since 2006 have been primarily attributed to the Veteran's mood disorder and/or alcohol dependence, neither of which are service connected disabilities, in the examiner's opinion. A March 2012 VA treatment note reflected the Veteran's reports of continued conflicts with his girlfriend and that he was working on "cutting back" his temper. He reported hearing voices twice per month and seeing shadows but otherwise denied having "real" visual hallucinations. Mental status examination found his memory and concentration to be decreased and his insight and judgment to be fair. The provider noted that the Veteran's PTSD was in moderate control. A June 2012 VA treatment note documents the Veteran's reports of daily auditory hallucinations as he heard men talking but could not understand what was being said. Mental status examination found his concentration to be decreased and his insight and judgment to be fair. III. Analysis A. Higher Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 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. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of 'staged rating' (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. Historically, in a December 2003 DRO decision, the RO awarded service connection and assigned an initial 50 percent rating for PTSD, effective October 7, 2002. Thereafter, in an April 2004 DRO decision, the RO corrected the effective date of the award to be November 7, 2002. The RO assigned the rating for the Veteran's PTSD under Diagnostic Code 9411. However, psychiatric disabilities other than eating disorders are actually rated pursuant to the criteria of a General Rating Formula. See 38 C.F.R. § 4.130. Under the General Rating Formula, a 50 percent rating is assigned for 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. Id. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Id. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness". There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Considering the pertinent evidence in light of the above, the Board finds that, with resolution of all reasonable doubt in the Veteran's favor, an initial 70 percent but no higher rating for PTSD is warranted from the November 2002 effective date of the award of service connection. The pertinent evidence includes testimony presented during the March 2006 hearing, contemporaneous mental health records, the August 2003 private psychological evaluation, the various VA examinations and the October 2011 private employability evaluation. The record establishes that, since the effective date of the award of service connection, the Veteran has experienced such psychiatric symptoms as chronic sleep impairment, intermittent flashbacks that were reported to not be serious or severe in nature, persistent irritability, anger outbursts, depression, anxiety, hypervigilance, paranoia and auditory hallucinations. Collectively, these symptoms have resulted in occupational and social impairment in most areas of the Veteran's life, thus indicating a moderately severe disability picture. The Veteran's psychiatric impairment has been characterized by symptomatology which suggests moderate to severe social impairment. He has repeatedly reported being unable to establish or maintain friendships and that he had either "lost touch" with his previous friends or had no friends except for his current girlfriend. Although he reported having two adult children, the record does not show that he had maintained any meaningful relationship with them. The only social activity in which he reported consistent participation was attending church, although he intermittently reported playing tennis. He did maintain a romantic relationship with his current girlfriend, however, the records suggests that this relationship is violate as there are multiple reports of verbal altercations that resulted in calls to the police, at least one incident involving a physical assault and an incident in which he threatened her with a knife. In addition, the Veteran expressed that he wished to move out of their shared home but was financially unable to do so. The Veteran's contemporaneous outpatient records suggest that his isolating tendencies stem, at least in part, from his anger outbursts and irritability. Although the Veteran has repeatedly denied a history of assaulting his girlfriend, he reported striking her in a fit of rage in an October 2002 Vet Center treatment note. He reported that his current girlfriend was afraid of him in October 2006 and that he became "irate" when someone cut in line at the gas station in March 2011. Further, he described an incident in October 2009 in which he threw a glass during a verbal altercation with this girlfriend, who then sought help from a neighbor due to his behavior. During the October 2011 private employability evaluation, the Veteran reported that he tended to get easily offended, that he lost his temper quickly and that he generally could not get along with others. The October 2011 private employability evaluator also found that the Veteran displayed an inability to interact appropriately with co-workers and general public. An October 2011 VA treatment note contained the Veteran's descriptions of two incidents in which the police were called to his home, including one in which they arrived in "riot gear," due to altercations with his girlfriend. The above-cited evidence demonstrates that the Veteran's PTSD has been characterized by impaired impulse control, a symptom associated with a 70 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Such evidence also demonstrates, in the Board's opinion, the Veteran's inability to establish and maintain effective relationships. Id. As previously noted, the Veteran does not have any social relationships outside of his girlfriend and arguably his adult children. In addition, the relationship with his girlfriend has been tenuous throughout the appeal, as multiple altercations were described in the record and the Veteran repeatedly reported during his recent outpatient treatment that he wished to move out of a home that he shared with his girlfriend but could not financially do so. It is also clear from the record that the Veteran's PTSD impaired his ability to adapt to stressful circumstances. This is demonstrated by his verbal outbursts when frustrated and his own reports in an August 2009 VA treatment note that he would require work as a subcontractor or consultant due to his difficulty in getting along with others. The October 2011 private employability evaluator noted that the Veteran's work situations "broke down" due to friction with others, the amount of pressure associated with work demands and his suspiciousness and mistrust of others. The Board further finds that the GAFs assigned in this case are consistent with no more than the 70 percent rating herein assigned. As noted, the Veteran has been assigned GAF scores that have ranged wildly from 45 to 68, with most scores falling in the 60 to 68 range. Under the DSM-IV, GAF scores ranging from 61 to 70 are indicative of some mild symptoms (like 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. Scores from 51 to 60 are indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 are indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Collectively, the assigned scores are indicative of mild to serious symptoms under the DSM-IV guidelines. As noted, however, assigned GAF scores are not dispositive of the evaluation issue but must be considered in light of the actual symptoms; the objective findings regarding the Veteran's symptoms do not support a finding of mild impairment. See 38 C.F.R. § 4.126(a). The Board notes that it does not appear that the VA providers, who had assigned the Veteran the higher GAF scores, had taken into the Veteran's more serious symptoms including impaired impulse control and a history of assaultive behavior. An August 2003 private psychological evaluation contained an assigned a GAF score of 45, the lowest score assigned during the appellate period, suggesting serious symptoms or serious impairments in social, occupational or school functioning; the 70 percent rating herein assigned contemplates such serious symptoms or serious impairments. Moreover, the GAF scores between 60 and 68 reflect less impairment than that contemplated by the 70 percent rating herein assigned; as such, it clearly provides no basis for an even higher rating. Accordingly, the collective evidence supports a finding that, since the November 2002 effective date of the award of service connection, the Veteran's PTSD has been characterized by symptomatology which results in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, consistent with a 70 percent disability rating. With respect to whether the Veteran's PTSD warrants the maximum 100 percent disability rating at any time pertinent to this appeal, the Board observes that the evidence does not demonstrate symptomatology which is more suggestive of total occupational and social impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9411. In this regard, none of the contemporaneous records or examination reports reflect any gross impairment in thought process or communication and the Veteran's long-term memory remained intact. He was consistently noted to be well or adequately groomed by his providers or the VA examiners. Although the Veteran has reported that he self-isolated, he has not demonstrated total social impairment as he had engaged in a romantic relationship during the course of the appeal and reported maintaining a relationship with his adult children. He also reported attending church and that he intermittently played tennis with others. Total occupational impairment was not demonstrated as he reported that he received a "rare" request to design furniture in September 2005. Delusions were consistently denied by the Veteran and were not demonstrated on objective examination. Although auditory hallucinations were reported, such symptoms were only intermittent and there is no suggestion that such hallucinations were persistent. Suicidal ideations were consistently denied and the Veteran has not been found to be a persistent danger to others despite his reports of rage and irritability. Therefore, a maximum, 100 percent rating is not warranted for any period pertinent to this appeal. See 38 C.F.R. § 4.130. The above determinations are based on consideration of pertinent provisions of VA's rating schedule. Additionally, the Board finds at no point pertinent to the November 2002 effective date of the award of service connection has the Veteran's PTSD been shown to be so exceptional or unusual to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. 111. In this case, the Board finds that schedular criteria are adequate to rate the Veteran's PTSD at all times pertinent to this appeal. As discussed above, the Veteran's predominant subjective and objective psychiatric symptoms impact his overall social and occupational functioning. A comparison between the Veteran's symptoms and the criteria of the rating schedule indicates that the rating criteria reasonably describe his level of impairment. Further, as noted, the rating schedule provides a higher rating based on evidence demonstrating more severe impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds an initial 70 percent, but no higher rating for PTSD is warranted. The Board has applied the benefit-of-the-doubt doctrine in awarding the initial 70 percent rating, but finds that the preponderance of the evidence is against assignment of the maximum, 100 percent rating at any time pertinent to this appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinksi, 1 Vet. App. 49, 53-53 (1990). B. TDIU due to PTSD Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, given the Board's decision on the rating issue, above, the Veteran has met the objective, minimum percentage requirement set forth in 38 C.F.R. § 4.16(a), for award of a schedular TDIU due to PTSD as of November 7, 2002. Thus, the remaining question is whether the Veteran's service-connected disability, in fact, renders him unemployable. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is 'whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.' See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2011); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The Board also points out that, in adjudicating a claim for VA benefit, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See generally 38 U.S.C.A. § 5107(b); Gilbert, supra. Considering the pertinent evidence in light of the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a TDIU is warranted. Initially, the Board recognizes that the Veteran has not been employed full-time at any time during the course of the appeal. As indicated above, unemployed does not mean unemployable. Although the Veteran reported receiving a "rare" request to design furniture in September 2005, there is no indication that such work was anything other than marginal. See 38 C.F.R. § 4.16(a). The Veteran has occupational experience as a sales associate/representative, dental lab technician and furniture/lighting designer. According to the Veteran, he had difficulties working even as a dental lab technician, which was largely solitary work, due to conflicts with co-workers, supervisors and business clients. The Board will not repeat its discussion of the Veteran's psychiatric symptoms. As a reminder, however, contemporaneous treatment records reflect numerous complaints regarding irritability, depression, anxiety, and anger/rage. Such records further indicate that while the Veteran was receiving both psychotherapy and medication treatment for his symptoms. In a September 2008 decision, SSA granted the Veteran disability benefits due, at least in part, to his PTSD. An October 2011 private employability evaluator found that it was at least as likely as not that the Veteran's service-connected residual impairments primarily stemming from hearing loss and PTSD have rendered him unable to secure or perform a substantially gainful occupation since 2002 as he had acquired no significant skills that would be transferable to self employment. In addition, the evaluator determined that the Veteran did not have the functional ability to focus on tasks and maintain concentration for at least two hour periods or to interact with employers, customers or supervisors. The evaluator further opined that the Veteran would not be able to obtain or sustain work, even unskilled work, that was absent social interaction, due to his symptoms. A March 2012 VA examiner opined that the Veteran's chronic history of irritability and anger management, which appeared to be the primary factors related to his difficulty maintaining consistent employment in the past, had been managed effectively through the use of skills learned in therapy. The examiner also suggested that the Veteran's symptoms were primarily attributed to his mood disorder and alcohol dependence, which were not service-connected conditions. The record (as described above) appears to reflect conflicting opinions on the issue of whether the Veteran is, in fact, unemployable due to his service-connected PTSD. A March 2012 VA examiner found the Veteran's PTSD to be mild and concluded that his symptoms did not result in occupational impairment or even an occasional decrease in work efficiency. In contrast, the October 2011 private employability evaluator found that the Veteran was unable to secure or perform a substantially gainful occupation. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board finds the opinion of the private employability evaluator to be at least as probative of that of the March 2012 VA examiner. In so finding, the Board notes that the record reflects that, like the VA examiner, the private evaluator had the opportunity to interview and evaluate the Veteran as well as review his medical history. Additionally, the private evaluator provided an opinion, with supporting rationale, as to why the Veteran's PTSD renders him unemployable Moreover, while the March 2012 VA examiner reported that the Veteran effectively managed his irritability and anger symptoms as there were no incidents of violence, the examiner failed to address the reported 2002 physical assault on his girlfriend, the 2008 incident in which he purportedly threatened his girlfriend with a knife and the multiple incidents in which the police have been called to his home, including one instance in which they purported arrived at his home in "riot gear." This examiner failed to consider the Veteran's past employment history and difficulties when rendering her opinion. In addition, this examiner stated that the Veteran's mood disorder and alcohol dependence were not service-connected disabilities. However, the August 2012 rating decision restyled this matter to include a mood disorder and alcohol dependence. See 38 U.S.C.A. § 7105; see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) (holding that once a condition is listed on a rating sheet as service connected, service connection remains in effect unless severed). As such, the Board finds that the competent opinion evidence on the question of whether the Veteran's service-connected PTSD precludes him from obtaining and maintaining gainful employment is, at least, in relative equipoise. Where, as here, after consideration of all evidence and material of record in a case for VA benefits, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Given the evidence noted above, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for a TDIU due to PTSD are met as of November 7, 2002. ORDER An initial, 70 percent rating for PTSD, from November 7, 2002, is granted, subject to the legal authority governing the payment of VA compensation. A TDIU due to PTSD, from November 7, 2002, is granted, subject to the legal authority governing the payment of VA compensation. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals epartment of Veterans Affairs