Citation Nr: 1301183 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10-24 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Keith Pflepsen, Attorney At Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to September 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted service connection and an initial 30 percent rating for PTSD, effective November 24, 2004. As noted below, in a subsequently issued February 2009 rating decision, the RO increased the disability rating for the Veteran's PTSD to 70 percent, effective November 24, 2004. The Veteran testified before the undersigned at a July 2011 video conference hearing. The hearing transcript is of record. During the hearing, he submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2012). The Board acknowledges the VA Form 8, which certifies the claims for entitlement to dependency benefits for the Veteran's spouse, Susan Reid Barnett, and son, Jesse Nash Steen. The Veteran was notified in a March 2011 letter that dependency benefits for his spouse had been granted. In his May 2010 VA Form 9, the Veteran argued that his son, Jesse Steen was a dependant based on the separate issue of permanent and total disability (helpless child), which was claimed as diagnosed at the age of eight. The Veteran was denied entitlement to helpless child benefits in a separate rating decision, issued in June 2010, which the Veteran did not appeal. At the time of the July 2011 hearing, the issues on appeal were identified as set forth on the title page. No reference was made to the issue of dependency benefits for the Veteran's son, Jesse Nash Steen. Accordingly, the issue is not currently on appeal before the Board. FINDINGS OF FACT 1. The evidence of record shows that the Veteran's PTSD is manifested throughout the appeal by deficiencies in most of the areas of work, school, family relations, judgment, thinking and mood, but is less than total occupational and social impairment. There is not 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; disorientation to time or place; or memory loss for names of close relatives. 2. The Veteran is service-connected for PTSD, rated as 70 percent disabling from November 24, 2004. 3. The evidence of record shows that the Veteran worked in conservation services until 2006. 4. The evidence of record shows that the Veteran is likely unable to secure and follow substantially gainful employment as a result of his service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 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 the assignment of TDIU due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, 5126 (West 2002 & Supp. 2011) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The appeal with regard to PTSD arises from disagreement with the initial rating following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation or evidence of prejudice. The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claim for entitlement to a TDIU. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103S; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.1599(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, and VA and private treatment records. Additionally, the Veteran was provided proper VA examinations in August 2006, July 2008 and March 2010 for his PTSD. The Board finds that VA has complied with the VCAA's notification and assistance requirements and the appeal is ready to be considered on the merits. Increased Rating for PTSD Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). A 30 percent rating is warranted for PTSD if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted for PTSD if it is productive of 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Codes 9411. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is based on a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). Scores ranging from 31 to 40 reflect "Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school)." Id. A score of 41 to 50 is indicated where there are "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)." Id. A score of 51-60 is appropriate where there are, "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)." Id. A score of 61-70 is indicated when there are, "Some mild symptoms (e.g., depressed mood and mild insomnia OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." Id. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2007) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. Analysis In an October 2006 rating decision, the RO granted service connection for PTSD. An evaluation of 30 percent was assigned, effective November 24, 2004. In a February 2009 rating decision, the RO increased the Veteran's disability rating for his service-connected PTSD to 70 percent, effective November 24, 2004. The Veteran was afforded VA examinations in August 2006, July 2008, March 2010 and July 2011, to evaluate his PTSD. The pertinent medical evidence of record also includes private treatment records from the Veteran's treating psychiatrist, W.S., and outpatient treatment records from the VA Lake City Outpatient Center dated from April 2008 to February 2010, and the Tallahassee VA Outpatient Center dated from July 2008 to July 2011. As discussed further below, the evidence of record shows that the Veteran has total occupational impairment due to his PTSD, which required him to medically retire in 2006. The Veteran has also experienced problems with his relationships with family members, including his wife, son and siblings. In addition, there is evidence of severe anxiety around people; worry; panic attacks more than once per week; sleep impairment; nightmares; flashbacks and intrusive thoughts; impairment of immediate memory; survivor's guilt; suicidal ideation; hypervigilance; increased startle response; jumpiness; suspiciousness; paranoia; intolerance of crowds; difficulty relaxing; irritability; anger issues; low frustration tolerance; and constant depression. However, there is no evidence of 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; disorientation to time or place; or memory loss for names of close relatives. There is also no evidence of record showing total social impairment, which is required for a higher rating of 100 percent. In this regard, although the Veteran has more recently reported increased social isolation and withdrawal, he still maintains a relationship with his wife and children, and reports socializing with friends and farmers at a truck stop and coffee house he frequents, as well as pursuing leisure pursuits, such as hunting, fishing, farming and advising farmers on soil management. Accordingly, the Board finds that the preponderance of the evidence is against an evaluation in excess of 70 percent for the Veteran's PTSD. Extra-schedular consideration The Board finds that as the decision herein and as described below grants entitlement to TDIU based entirely the 70 percent rating for service-connected PTSD, extra-schedular consideration by the Under Secretary for Benefits or the Director, Compensation and Pension Service, pursuant to 38 C.F.R. § 3.321(b)(1), is not warranted or necessary. TDIU The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2012) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The central inquiry is, "whether the Veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Analysis The Veteran is currently service-connected for PTSD, rated as 70 percent disabling. Therefore, he meets the schedular criteria for consideration of a TDIU under 38 C.F.R. § 4.16(a). The record shows that the Veteran is currently 65 years old, and that he completed four years of college and earned a Bachelor's degree in biology and chemistry. The Veteran previously worked for over twenty-five years for the USDA Natural Resources Conservation Service as a District Conservationist. In his claim for TDIU, filed in June 2009, the Veteran reported that he was unable to work due to his PTSD, and that he last worked in August 2006. In a Request for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4192), completed in August 2009 by the USDA Natural Resources Conservation Service and US Office of Personnel Management, it was noted that the Veteran last worked in September 2006 as a District Conservationist, and that he had stopped working due to disability retirement. During psychiatric counseling with private psychiatrist W.S. in 2005, the Veteran reported that since his return from Vietnam, he had experienced symptoms of fear and anxiety. More specifically, he had experienced claustrophobia and intense anxiety in enclosed environments, such as offices and bathrooms with no windows, and when sleeping in dark rooms. As such, several physicians had suggested that his "best medicine" was being in the outdoors, and that being inside contributed to severe anxiety and depression, and recommended that he find employment with an agency that allowed him to work in the outdoors. Consequently, upon his graduation from college in 1974, he went to work for the USDA Soil Conservation Service, but in the mid 1980s his job details shifted to administration, and he was so impacted by this change that he resigned in 1989. In the late 1990s, he went back to work for the USDA, not realizing that the stress caused by the administration part of the job was going to increase. In this regard, the agency was moving towards more office time, computer work and record management, and less field work, a change the examiner concluded the Veteran would not be able to handle, in that he was unable to function in such a capacity. Dr. W.S. also opined that the Veteran's psychological disability interfered with his performance in the workplace. See May 2005 statement and July 2005 psychiatric evaluation from W.S. and February 2009 statement from the Veteran. In a March 2006 statement, the Veteran's psychologist, W.S. noted that the Veteran was somewhat phobic and overly emotional about being closed in, and that recent changes in his job environment, requiring him to work more often in an office instead of outdoors, and more often with computer-based data that was difficult for him to manage, would be a problem for him. As such, Dr. W.S. recommended that the Veteran pursue disability retirement. During his August 2006 VA examination, the Veteran reported that he was on medical leave for an entire year, due to a combination of anxiety (due to increased demands for him to use computers), claustrophobia, and his eye condition (macula rupture). The examiner diagnosed the Veteran with PTSD and Panic Disorder without Agoraphobia. He noted that since PTSD patients are often in a state of hyperarousal, the threshold for panic is low and it is a disorder frequently comorbid with PTSD. He was assigned a GAF score of 65 for his PTSD only. The examiner also noted that the Veteran's PTSD symptoms alone had minimal impact upon his employment, as his panic attacks, prompted by closed up spaces, appeared to be the most significant contribution to his occupational problems, in addition to increased confinement due to computer technology. An August 2006 statement from the Office of Personnel Management (OPM) states that the Veteran was found to be disabled for his position as a Soil Conservationist, due to his PTSD and macular degeneration of the left eye. The Board notes that the Veteran contends that he was informed by his physicians that the macular rupture of his left eye was related to anxiety, secondary to his PTSD. During his July 2008 VA examination, the Veteran complained of panic attacks three times per week, if in enclosed places and sometimes otherwise, and claustrophobia with associated anxiety symptoms. The Veteran reported that his anxiety level would escalate at work in the past due to his restricted work environment, increased computer use with vision problems, and an in ability to interact outdoors with farmers as he did in the past. The examiner diagnosed PTSD and Panic Disorder, and assigned a GAF score of 60 for his PTSD only, and noted that the Veteran's panic attacks were either linked to PTSD or a progression of his PTSD. Dr. W.S. also noted in a July 2008 PTSD Questionnaire that the Veteran's relationships at work as well as with family, had deteriorated. In this regard, he noted that the Veteran experienced panic attacks more than once per week; that he had difficulty understanding complex commands most of the time; that he had impairment of short and long-term memory; that he frequently demonstrated severe impaired judgment and frequently experienced impaired abstract thinking. He also noted that the Veteran was depressed and lacked motivation. Dr. W.S. also opined that the Veteran had a GAF score of only 45, and that he had serious impairment in social and occupational functioning, which had caused him to lose his job. The March 2010 VA examiner opined that the Veteran was not unemployable due to his PTSD. Instead, he found that the Veteran's PTSD caused moderate impairment and was not severe enough to prevent him from being able to work. Other than noting that the Veteran had attributed his unemployment to his eye condition, the examiner did not give a rationale for his opinion. The July 2011 VA examiner concluded that the Veteran's PTSD symptoms would continue to affect his difficult interactions with individuals at work, and that his PTSD would disturb him if he was working in a confined place. The examiner also noted that the fact that the Veteran continued to be disturbed by symptoms of agitation due to indoor confinement at work and angry interactions with subordinates, could interfere with work efficiency. However, he also noted that the Veteran was performing work akin to his old job (outdoor soil management) on a volunteer basis at least twice a week, which he was enjoying and doing well. As such, the examiner opined that the difference in job type, number of hours per week, and the fact that he did not have to manage others, lessened the degree to which the Veteran's PTSD impaired his occupational functioning. However, during his July 2009 hearing, the Veteran testified that he was not able to maintain gainful employment due to his PTSD symtomatology, which includes severe anxiety and an inability to get along with others. Based on the foregoing, and affording the Veteran the benefit of the doubt, the Board finds that the competent medical evidence of record supports that the Veteran is precluded from engaging in substantially gainful employment as a result of his service-connected PTSD. The Veteran's PTSD is rated as 70 percent disabling, which is indicative of significant impairment of health. Furthermore, there is competent evidence of record showing that the Veteran was required to medically retire due to his residual symptoms of PTSD. See August 2006 letter from OPM. In addition to his service-connected PTSD, the Veteran also suffers from macular degeneration of the left eye which has also been found to be a significant factor in the Veteran's unemployability. See August 2006 letter from OPM. But even apart from this nonservice-related factor, the medical evidence indicates that he would be unable to secure or maintain substantially gainful employment due to his service-connected PTSD alone. In other words, even if his nonservice-connected eye disability was not present, he still would be unable to obtain or maintain substantially gainful employment because of the severity of his PTSD. In this regard, the evidence of record shows that even before he suffered the macular rupture of his left eye, he had severe problems adjusting and experienced symptoms of severe anxiety and panic when his work environment and responsibilities changed. VA examiners have associated the Veteran's symptoms of anxiety with his PTSD. The Veteran had reported during psychiatric treatment in 2005 that he was unable to get along with co-workers and that he felt threatened by them. In addition, Dr. W.S. opined in his May 2005 statement that the Veteran's psychological disability interfered with his performance in the workplace, and that he saw no areas of accommodation that would be effective for the Veteran. His prognosis for the Veteran being able to return to the workplace and perform his duties satisfactorily was poor. He recommended that the Veteran pursue disability retirement if he did not improve. He again recommended that he pursue disability retirement in 2006, which the Veteran ultimately did. Dr. W.S. also noted in the aforementioned July 2008 PTSD Questionnaire that it was the Veteran's PTSD symptoms that had caused serious impairment in occupational functioning, and ultimately, caused him to lose his job. In reaching this determination, the Board acknowledges the March 2010 examiner's opinion that the Veteran was not unemployable due to his PTSD, and the July 2011 examiner's opinion that the difference in job type, number of hours per week, and the fact that he did not have to manage others, lessened the degree to which the Veteran's PTSD impaired his occupational functioning. In this regard, the Board notes that while the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Board finds that there is ample evidence from the Veteran's psychiatrist, who has treated him on a more regular basis than the March 2010 and July 2011 VA examiners, that the Veteran is not able to maintain gainful employment due to his PTSD. See May 2005 statement, July 2005 and March 2006 treatment reports, and July 2008 PTSD questionnaire from W.S. Furthermore, the August 2006 VA examiner opined that the most significant contribution to the Veteran's occupational problems was his panic attacks, and the July 2008 VA examiner concluded that the Veteran's panic attacks were associated with his PTSD. In addition, the VA outpatient treatment records show that as recently as 2011, the Veteran was still experiencing severe anxiety around people, to the point where he had to leave group therapy sessions due to his discomfort. As such, the Board finds that he would still likely be uncomfortable in a work setting where he had to interact with others. Furthermore, the July 2011 VA examiner opined that the Veteran's PTSD negatively affected his ability to maintain employment; and the Veteran himself testified during his July 2011 hearing that he could not work due to this PTSD. The Board also notes that the Veteran is over sixty years old, and worked as a soil conservationist for over twenty-five years. Although he holds a degree in biology and chemistry, there is no indication in the record that he has worked or received training in any other field. Furthermore, there is no evidence that the Veteran would be able to obtain a position that would offer him the same working conditions (job type, number of hours per week, and the fact that he did not have to manage others) as he is able to maintain in his volunteer work. Furthermore, his age (65) makes it highly unlikely that he would be able to learn new job skills that would enable him to transition into a different career at this time in his life. In this regard, the evidence does show that the Veteran reported having an antique store during his July 2008 VA examination, but his social isolation prevented him from actually operating the store. Instead, he merely responded to requests posted on the closed door. See July 2008 VA examination report. He also testified during his July 2011 hearing that he was not able to maintain full-time employment, even in a different type of job that he had worked before because he was still having anxiety attacks three to four times per week, and he could not get along with other people. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The critical issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In this case, the evidence reflects that the Veteran's PTSD presents significant obstacles with respect to the Veteran's employability, essentially rendering him unemployable as defined for VA purposes. There is evidence against the claim, as noted above. There can be no doubt that further inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). In summary, as it appears that the Veteran's service-connected PTSD precludes him from securing or maintaining substantially gainful employment, the criteria for entitlement to a TDIU have been met. Accordingly, the TDIU claim is granted. ORDER A rating in excess of 70 percent for PTSD is denied. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs