Citation Nr: 1300513 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 07-10 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The veteran served on active duty from August 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board remanded this matter for additional development in a January 2011 decision. The following determination is based on review of the Veteran's claims file and his electronic Virtual VA file. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, for the period from September 30, 2005, when the Veteran filed his informal claim for service connection, his PTSD is manifested by occupational and social impairment with deficiencies in most areas. 2. The Veteran is only service-connected for PTSD with a 70 percent disability rating. 3. The evidence is at least in equipoise regarding whether the Veteran's service-connected disability renders him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent, but no higher, for PTSD, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 3.159, 4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service connection claim, to include Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to notice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Considering the determination reached in this decision the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis for resolution of the claims without detriment to the due process rights of the Veteran. The Veteran was notified via letters dated in December 2005 and March 2006 of the criteria for establishing service connection for PTSD, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates in the March 2006 correspondence. After the correspondence dated in December 2005 and March 2006 was issued, the Veteran was granted service connection for PTSD and assigned an initial disability rating and effective date in the rating decision now on appeal. As the claim was more than substantiated in that it was proven, the purpose that the notice is intended to serve has been fulfilled. No additional notice was required for this claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In addition, as the higher initial rating claim for PTSD is a downstream issue from that of service connection, notice was never required for that issue. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); VAOPGCPREC 8-2003 (2003), 69 Fed. Reg. 25180 (2004). VA also has a duty to assist a Veteran in the development of a claim. As a result of the Board's January 2011 remand, the RO scheduled a VA PTSD examination in August 2012. Thus, the Board finds that the duty to assist has been fulfilled as medical records relevant to this claim have been requested or obtained and the Veteran has been provided with a recent VA examination of his higher initial rating claim for PTSD. The Board finds that the available medical evidence is sufficient for an adequate determination of this claim. There has been substantial compliance with all pertinent VA laws and regulations and to adjudicate this claim would not cause any prejudice to the Veteran. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings 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 (West 2002); 38 C.F.R. § 4.1 (2012). To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to staged ratings to compensate for any times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204 (1994). Rating of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses are prohibited. 38 C.F.R. § 4.14 (2012). When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2012). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2012). PTSD Service connection for PTSD was granted in the September 2006 rating decision currently on appeal and a 50 percent rating was assigned, effective September 30, 2005, pursuant to the rating criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). Under that diagnostic code and the General Rating Formula for Mental Disorders, ratings may be assigned ranging between 0 and 100 percent. A 50 percent disability rating requires 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 (such as retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires 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 work like setting); and inability to establish and maintain effective relationships. A 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders (2012). The symptoms recited in the criteria in the rating schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When rating a mental disorder, the rating must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2012). Further, when rating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2012). Reports of psychiatric examination and treatment frequently include 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), a GAF scale includes scores ranging between zero and 100 which represent the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health illness. The GAF score and the interpretations of the score are important considerations in rating a psychiatric disability. Richard v. Brown, 9 Vet. App. 266 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, an assigned GAF score, like an examiner's assessment of the severity of a condition, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder, which provide the primary basis for the rating assigned. 38 C.F.R. § 4.126(a) (2012). A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51 to 60 indicates 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). American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (1994). Factual Background and Analysis The Veteran was awarded a 50 percent disability rating when granted service connection for PTSD, effective September 30, 2005, the date of his informal claim. In his October 2006 notice of disagreement, the Veteran contended that he was entitled to a higher rating because of his difficulties in maintaining employment, daily depression, anxiety attacks several times a week, and explosive episodes of uncontrollable anger. The Board notes that the Veteran's service separation form indicates that he served in the Navy and received both the Combat Action Ribbon and the Vietnam Service Medal. In a signed statement at the time of his informal claim in September 2005, the Veteran an stated that he had problems with anger, sleeplessness, nightmares, and depression since his discharge from service and that he used to have very explosive outbursts of anger. He also said that he slept with a gun under his pillow. The Veteran also noted that he had been sober for about five years and was reluctant to take any medication for his depression. He also contended that he was extremely anxious in crowds and unfamiliar environments and that certain smells often triggered memories of his Vietnam experiences. The Veteran was diagnosed with PTSD at a private psychological assessment in October 2005. According to the report of that examination, the Veteran described recollections of the ship he served on during the Vietnam war being attacked by enemy fire in August 1968 and of an officer being injured. He also recalled the ship patrolling close to shore where he could observe ground battles and hear troops screaming in terror. He complained of sleeping difficulties, including nightmares, a depressed mood, difficulty with anger and rage outbursts, self-isolation, hyper-alertness, hyper-vigilance, diminished concentration and energy level, and difficulty accepting authority figures. He claimed that the stress of his wartime experiences had impacted his two marriages (both divorces) and his ability to maintain employment. He felt he needed to check his property and doors at night. The Veteran also told the examiner that diesel smells tended to re-stimulate his sense of distress. On mental status examination, the Veteran was oriented to three spheres, appeared appropriately groomed, and his speech was clear and coherent. His affect was subdued but generally appropriate to mood and content. His mood seemed moderately depressed and he reported vegetative symptoms. There was no evidence of suicidal ideation or of a thought disorder or delusions. Insight and judgment appeared intact and his memory was within normal limits. The private psychologist recommended outpatient counseling and assigned a GAF score ranging between 50 and 55. Records from the Chico Vet Center dated from November 2005 to July 2008 describe the Veteran as depressed with severe PTSD symptoms, including daily panic attacks since October 2006. A July 2008 record noted that the file was being closed and would be reopened should the Veteran desire further counseling. The Veteran underwent a VA mental disorders examination in January 2006. He complained of poor sleep and repetitive nightmares and unemployment since December 2005. He lived alone in a place provided by his father and did no socializing but for attending church. The examiner noted that the Veteran spent approximately a year onboard ship in Vietnamese waters during service. His ship provided fire support to troops on land and the Veteran was a loader in a 5-inch gun mount when on battle stations. On mental status examination, he appeared to be mildly to moderately depressed, his appearance and speech were within normal limits, and he was oriented to three spheres. The Veteran could not do serial sevens. There was no evidence of hallucinations or delusions or suicidal ideation. He reported his memory of his working years was spotty due to his 25-year history of substance abuse. Judgment and insight were intact. It was noted that the Veteran had memories of Vietnam about once a week and dreamed on a nightly basis. He also reported occasional flashbacks and a significant psychological response to thinking about Vietnam. Affect was rather dull and he was noted to be mildly detached from society in general. Significant problems were noted with anger, such as that he had lost a few jobs because of his anger. He also had difficulty staying asleep and his ability to concentrate was not very good. He also was hypervigilant. Diagnosis was PTSD and a GAF score of 55 was assigned. The VA examiner noted a guarded prognosis and observed that the Veteran may have used substance abuse as an attempt to self-medicate over the years. The examiner stated that suggested that the PTSD symptomatology had been present for a long time. The examiner opined that PTSD symptoms appeared to be mild to moderate in their effect on his life. Correspondence dated in September 2006 and December 2006 from the Veteran's readjustment counselor at the Vet Center, noted that the Veteran had been a client since November 2005 and was having trouble falling and staying asleep because of nightmares, depression, anxiety or daily panic attacks, alienation, flash anger/rage, negative self-image, distrust of authority, intrusive thoughts, survivor's guilt and grief, and night sweats. The counselor also noted that the Veteran had not been able to have steady work since he left service and that most of his jobs lasted only a few months because of his quick temper, distrust of authority, and difficulty following instructions. The Veteran underwent a VA mental disorders examination in February 2011. He told the examiner that he was not taking any medications for his PTSD because he had taken drugs all his life. He also told the examiner that he went to the Vet Center for group and individual therapy for about two years, but stopped because he felt the treatment did not allow him to forget his problems. It was also noted that the Veteran had been twice divorced after brief marriages and had one adult daughter whom he had not seen since she was five years old. He lived in a mobile home with one of his brothers. On mental status examination, he was oriented to person, place, and time and was appropriately dressed. His speech was impoverished, affect was constricted, and mood was anxious, depressed, and irritable when around people. He was easily distracted, had a short attention span, and could not do serial sevens. His thought process was described as rambling. Judgment, insight, and intelligence were described as understandable or average. Sleep impairment was noted. There was no evidence of hallucinations, inappropriate behavior, homicidal ideation, or obsessive/ritualistic behavior. As to panic attacks, the examiner explained that the Veteran became quite anxious when out of his home area but that was not to the extent of having a genuine panic attack. The Veteran admitted some suicidal ideation, but tried to get rid of such thoughts when they appeared and he had never attempted to take his own life and said that he would not. The Veteran admitted to past episodes of violence, including a history of bar fights that ended about 10 years prior. His recent and immediate memory were both described as mildly impaired. It was also noted that the Veteran led a life of isolation and had difficulty sleeping, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and an exaggerated startle response. Diagnosis was chronic PTSD and a recurrent major depressive disorder. A GAF score of 45 was assigned. The VA examiner opined that the Veteran's overall condition had worsened as he had developed clinical depression from his long term symptoms. As a result, he felt worse and was even less active than before. The February 2011 VA examiner opined that the Veteran's symptomatology indicated occupational and social impairment with deficiencies in most areas, such as work, family, judgment, thinking, or mood, or the rating criteria for a 70 percent rating. In a March 2012 addendum, the February 2011 VA examiner noted surprise that the Veteran was not given a disability rating higher than 50 percent. The examiner noted that he had assigned a GAF score of 45 and had indicated social and occupational impairment ranked in the second most severe category. The examiner stated that he had made those assignments with the view of increasing the Veteran's disability rating. In a July 2012 addendum, the February 2011 VA examiner noted that when he saw the Veteran in February 2011, the Veteran was not totally disabled due to PTSD. The examiner noted there were no VA mental health treatment records since that examination. In addition, the examiner stated a belief that the Veteran believed he was totally disabled and had developed a lifestyle consistent with that belief. The Veteran underwent a VA mental disorders examination in August 2012. The Veteran reported no new work or training or mental health treatment since his last examination. He last worked in 1998. He showed the examiner earnings statements from the Social Security Administration which indicated he rarely made more than $10,000 a year and in some years much less. He had lived with his brother for the past 12 years with no close friends. The Veteran claimed to have abstained from alcohol for the past six years. The August 2012 VA examiner, a clinical psychologist, reported that the Veteran's PTSD caused total social and occupational impairment. Symptomatology included a depressed mood; anxiety; suspiciousness; panic attacks that occurred weekly or less often; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances. The examiner also noted that the Veteran experienced recurrent and distressing recollections or dreams; a restricted range of effect; estrangement from others; sleep difficulties; irritability or outbursts of anger; hypervigilance; and an exaggerated startle response. A GAF score of 41 was assigned. Resolving all reasonable doubt in favor of the Veteran, for the period from the grant of service connection on September 30, 2005, the Board finds that the Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas, warranting a 70 percent rating. Based on the observations made in the Vet Center medical records, the lay and medical evidence of record is in relative equipoise as to whether the Veteran's PTSD symptoms met the criteria for the 70 percent rating during the appeal period. Therefore, the Board finds that a 70 percent rating is warranted. Evidence from the October 2005 private psychological assessment and Vet Center records showed severe symptoms, including sleeping difficulties; nightmares; a depressed mood; daily panic attacks; difficulty with anger and rage outbursts; self-isolation; hyper-alertness; hyper-vigilance; diminished concentration and energy level; and difficulty accepting authority figures. The February 2011 VA examiner opined that the Veteran's PTSD symptoms matched the rating criteria for a 70 percent disability rating and the August 2012 VA examiner opined that the Veteran's PTSD symptomatology manifested total occupational and social impairment. On the other hand, the January 2006 VA examiner opined that the Veteran's PTSD symptoms were mild to moderate in effect. Moreover, GAF scores assigned to the Veteran ranged from 41 to 55, which represent symptomatology ranging from moderate to serious symptoms. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence which satisfactorily proves or disproves the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102 (2012); 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that the evidence in the claims file is, at the very least, in equipoise as to the question of whether the Veteran is entitled to a 70 percent rating for the entire period of appeal, especially because he discontinued Vet Center counseling after July 2008 and the VA examination reports do not report symptomatology as severe as that noted in Vet Center and private records. However, resolving reasonable doubt in favor of the Veteran, the Board finds that under the circumstances of this case, the Vet Center evaluations and the other evidence of serious PTSD symptoms are sufficient to provide support for the award of an initial 70 percent disability rating for the period from September 30, 2005, the date of his informal claim for service connection for PTSD. The evidence of record for this time period does not show that the Veteran's reported PTSD symptoms met the criteria for the next higher rating of 100 percent, which requires total occupational and social impairment. The Veteran did not exhibit symptoms that could be called synonomous with those listed under the criteria for the assignment of a 100 percent rating in the General Rating Formula. Since September 30, 2005, there was no objective evidence of gross impairment in thought processes or communication; persistent hallucinations or delusions; an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The Board finds that the symptomatology described in the medical and lay evidence for the period from September 30, 2005, is more consistent with the rating criteria for the 70 percent rating rather than with either a lower 50 percent or a higher 100 percent disability rating. Thus, the Board will resolve all reasonable doubt in this matter and find that a 70 percent rating for PTSD, but no higher, is warranted for the period from September 30, 2005. The Board has considered the Veteran's assertions that his PTSD disability warrants a higher initial rating. The Board has considered the statements of the Veteran as to the extent of his PTSD over the entire course of this appeal. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in rating a claim for an increased schedular disability rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). While he is competent to report that his symptoms are worse, the training and experience of medical personnel makes the medical findings found in treatment notes and examinations more probative as to the extent of the disability. Cromley v. Brown, 7 Vet. App. 376 (1995). Thus, while the Board has sympathetically considered the Veteran's appeal and increased his disability rating for the period on appeal, it has not awarded a 100 percent rating for the total occupational and social impairment that the Veteran contends he is entitled to on appeal. Consideration has been given to assigning a staged rating for this claim. However, a 70 percent rating has now been assigned for the entire rating period on appeal. At no other time during the appeal period has the evidence and the Veteran's PTSD symptoms warranted the assignment of a rating higher than what has been herein assigned. Fenderson v. West, 12 Vet. App. 119 (1999). Finally, the Veteran's PTSD disability does not warrant referral for extraschedular consideration. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extraschedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular evaluation is appropriate. First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as governing norms. 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). The rating criteria are not inadequate in this case. The Veteran does not meet the schedular criteria for a 100 percent rating in the time period examined in this appeal. However, there is evidence of interference with employment in this case. As noted in the January 2011 remand, the Board found that the issue of a TDIU was raised by the record in the Veteran's appeal for a higher rating for his service-connected PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the TDIU claim is part and parcel of the Veteran's higher rating claim for his service-connected PTSD. TDIU Total disability means that there is present an impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15 (2012). A veteran is determined unable to engage in a substantially gainful occupation when jobs are not realistically within his physical and mental capabilities. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991). In making that determination, consideration may be given to factors such as the Veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Two different means exist to determine whether a veteran is totally disabled. The Schedule for Rating Disabilities provides for a finding of total disability to be made on an objective basis. A veteran is considered totally disabled if his service-connected disability is, or combination of service-connected disabilities are, rated at 100 percent. 38 C.F.R. § 3.340(a)(2) (2012). Even if the veteran is less than 100 percent disabled, he still will be considered totally disabled if he satisfies two requirements. First, the veteran must meet a minimum percent rating. If he has one service-connected disability, it must be rated at 60 percent or more. If he has two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. 38 C.F.R. § 4.16(a) (2012). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran is currently service-connected for PTSD and in the decision herein has been awarded a 70 percent initial disability rating. Thus, as the Veteran has one disability rated at 60 percent or more, he meets the minimum percent rating requirement of 38 C.F.R. § 4.16(a). Consequently, the schedular standards for consideration of a TDIU under 38 C.F.R. § 4.16(a) are met. The remaining question before the Board, therefore, is whether the Veteran is unemployable by reason of his service-connected disability alone, taking into consideration his educational and occupational background. The fact that a veteran is unemployed is not enough. The question is whether his service-connected disorders without regard to his nonservice-connected disorders or lack of work skills or advancing age made him incapable of performing the acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The record shows that the Veteran is currently 63 years old. He did not graduate from high school and completed the 11th grade. According to information in the VA examinations of record, he previously worked intermittently in the construction business as a carpenter. The Veteran was first diagnosed with PTSD due to stress generated by his memories of Vietnam in an October 2005 private psychological assessment. The private psychologist had noted that the Veteran completed 11 years of formal graduation, was employed as a carpenter, and had difficulty maintaining employment. In his January 2006 VA mental examination, the examiner noted that the Veteran had a significant problem with his anger and had lost a few jobs because of it. In letters dated in September 2006 and December 2006, the Veteran's readjustment counselor at the Vet Center noted that the Veteran had not been able to have steady work since he left service and that most of his jobs lasted only a few months because of his quick temper, distrust of authority, and difficulty in following instructions. The counselor also noted that the Veteran had a long history of getting mad at fellow employees and getting into fights. In his October 2006 notice of disagreement, the Veteran claimed that he was unemployed from 2004 to April 2006 and that from April 2006 to October 2006 he was employed temporarily doing construction work. Prior to 2004, he stated that his work history was spotty, that he had many jobs since his discharge from service in 1969, and that he never stayed at one job more than two to three months. He explained that he had walked off many jobs because someone or something had interfered with how he had planned out the day and he became so upset that he could no longer function or focus. The Veteran underwent a VA mental disorders examination in February 2011 as a result of which the examiner concluded that the Veteran was not totally disabled. The examiner noted, however, that the Veteran had lost numerous jobs due to his irritability with an often uncontrolled temper and that the Veteran did not respond well to supervision. In addition, fatigue from sleeping difficulties and poor concentration had caused serious impairment in his ability to perform his jobs. In a March 2012 addendum, the February 2011 VA examiner noted that the Vet Center counselor had stated that the Veteran was not employable. However, the VA clinical psychologist noted that when he saw the Veteran in February 2011 the Veteran had not been to the Vet Center in two years. The examiner felt that the Veteran's condition was better than that described in the Vet Center records. The Veteran underwent a VA mental disorders examination in August 2012. He told the examiner that he last worked in 1998 and that he had generally worked from job to job mostly in construction. He said that he only lasted a day or two at each job because he could not control his temper or get along with others. He said it was better if he had a job where he could work by himself. The examiner, a VA clinical psychologist, opined that the Veteran's service-connected PTSD, without consideration of any nonservice-connected disabilities, rendered him unable to secure or follow a substantially gainful occupation. The examiner explained that the Veteran demonstrated total occupational and social impairment. The examiner noted that the Veteran's occupational history supported a judgment of underemployment and eventual total impairment as did earnings statements from the Social Security Administration. The examiner noted that the Veteran attributed that to anger control problems which are common in veterans with PTSD. In light of the evidence, and resolving reasonably doubt in favor of the Veteran, the Board finds that the Veteran is not capable of securing and following a substantially gainful occupation as a result of his service-connected disability. There is no evidence that any nonservice-connected disorder affects his ability to obtain and maintain employment or renders him unemployable. However, the evidence of record suggests that the Veteran's service-connected PTSD, coupled with consideration of his limited educational background and intermittent work experience, preclude him from securing and following substantially gainful employment. The medical and lay evidence suggests that his PTSD, particularly his lack of anger management, operates as an occupational impairment. Resolving all reasonable doubt in the Veteran's favor, taking into consideration the opinion of the August 2012 VA examiner, the Board finds that it is at least as likely as not that the Veteran's service-connected PTSD precludes him from obtaining and maintaining substantially gainful employment. The Board notes that it is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, because of the Veteran's service-connected PTSD, he would likely have difficulty working again. Moreover, the work history provided by his SSA earnings statements show that if the Veteran were able to secure employment in the near future he would most likely lose that position quickly due to his inability to control his temper and his anger. The Board finds that the lay and medical evidence of record indicates that the Veteran would most likely be unable to secure or maintain substantially gainful employment due alone to his service-connected PTSD. The Board finds that this matter is at the point of equipoise. The February 2011 VA examiner opined that the Veteran was not unemployable due to PTSD. The Vet Center readjustment counselor and the August 2012 VA examiner opined that the Veteran's PTSD symptoms rendered him unable to secure or follow a substantially gainful occupation. The Board believes that the evidence strongly suggests that the Veteran's service-connected PTSD is significant enough to preclude him from obtaining substantially gainful employment. Therefore, based on its review of the relevant evidence, and resolving reasonable doubt in favor of the Veteran, the Board finds that it is as likely as not that the Veteran is precluded from work due to his service-connected PTSD. Therefore, a total disability rating based upon individual unemployability is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial 70 percent rating, but not higher, for PTSD is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs