Citation Nr: 1305669 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 09-23 285A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial, staged disability evaluation (rating) in excess of 10 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to February 1968. He is the recipient of the Combat Infantryman Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Wichita, Kansas, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for posttraumatic stress disorder (PTSD) and assigned a noncompensable evaluation, effective December 2004. By rating action in May 2009, a 10 percent evaluation was assigned, effective December 2004. The Veteran continued to disagree, and the grant of a higher initial rating is not a full grant of the benefit sought on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). This case was previously before the Board in April 2011, wherein it was remanded for additional due process considerations and development. The case was returned to the Board for appellate consideration. The Board finds that there has been substantial compliance with the directives of the remand, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. FINDINGS OF FACT 1. Throughout the initial rating period on appeal, the Veteran's PTSD has been characterized by occupational and social impairment with difficulties in most areas, such as work, family relations, judgment, and mood, due to near continuous depression affecting the ability to function independently, impaired impulse control, and difficulty in adapting stressful circumstances. 2. The competent and probative medical evidence demonstrates that the Veteran's service-connected disability, when evaluated in association with the Veteran's educational attainment and occupational experience, precludes all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial disability evaluation of 70 percent, but no higher, for PTSD have been met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.126, 4.130, Diagnostic Code 9411 (2012). 2. The criteria are met for a TDIU. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters to the Veteran in January 2005 and July 2011. The January 2005 letter explained the evidence necessary to substantiate the claim for service connection, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. The July 2011 notice addressed the TDIU claim and that issue was addressed in the April 2012 supplemental statement of the case. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004), Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Concerning the appeal for a higher initial rating for PTSD, this is a "downstream" element of the RO's grant of service connection for this disability in the currently appealed rating decision, and no additional notice is required. Nevertheless, March 2006 and July 2011 letters from VA to the Veteran explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the CAVC have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date). Any defect as to the timing of the issuance of notice was cured by readjudication in an April 2012 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. (2006). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and reports of VA post-service treatment, as well as the Veteran's own statements in support of his claims. The claims file also includes a disc containing Social Security Administration records, which were reviewed by the RO prior to the issuance of the April 2012 supplemental statement of the case, and reviewed by the Board. In 2005 and 2012, the Veteran was examined by VA in connection with the claims. As noted above, the Veteran has been assigned a 10 percent rating effective from December 2004, and he asserted that he is entitled to a higher initial rating. The record includes VA outpatient treatment records and adequate VA examinations conducted during the rating period on appeal, from 2004 through the most recent VA examination in 2012. The Board finds that the record is adequate to address the claims on appeal. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues on appeal. The examination reports contain all the findings needed to evaluate the Veteran's initial rating appeal, including his history and evaluations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has reviewed the Veteran's statements and evidence of record and concludes that there is no outstanding evidence with respect to the claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Rating of PTSD Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where, as here, an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, evaluations may be "staged." See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). This, in turn, will compensate the veteran for times since the effective date of the award when his disability may have been more severe than at other times during the course of his appeal. The Veteran's PTSD was initially evaluated as 10 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 10 percent disability evaluation is warranted where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent disability rating is warranted where 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, chronic sleep impairment, and mild memory loss. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, 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-term 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. For the next higher 70 percent evaluation to be warranted, there must be occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms such as: suicidal ideation; obsessive rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. Id. A 100 percent rating is provided 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. §§ 4.125-4.130. The GAF is a scale reflecting the "'psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness.'" Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994) (DSM-IV)). See also 38 C.F.R. § 4.130. A GAF score of 41-50 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)." Id. A GAF score of 51-60 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)." Id. A GAF score of 61-70 indicates "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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific evaluation. See Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The U.S. Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. See Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Analysis of Initial Rating for PTSD The Veteran contends that a higher initial disability rating than 10 percent for PTSD is warranted for the rating period on appeal. In his notice of disagreement, the Veteran's representative asserted that the Veteran's social and occupational impairment was severe. After a review of all the evidence, lay and medical, the Board finds that the Veteran's service-connected PTSD more nearly approximates the criteria for an initial 70 percent disability evaluation, but no higher, for the entire rating period on appeal under Diagnostic Code 9411. The Board finds that the Veteran's psychiatric symptoms have been relatively consistent, and that the 70 percent evaluation takes into account the Veteran's social and occupational impairment for the entire initial rating period. Throughout the initial rating period, the Veteran's PTSD has been characterized by occupational and social impairment with deficiencies in most areas, including work, family relations, thinking, and mood due to symptoms affecting the ability to function independently, unprovoked irritability, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The evidence shows that the Veteran does not experience genuine panic attacks, nor does he have obsessional rituals, impaired impulse control, delusions or hallucinations, spatial disorientation, or illogical speech or thought processes as a result of his PTSD; he is alert and oriented upon examination, he does not have a hyperstartle response, and his depression does not prevent him from functioning independently. Nevertheless, VA examiners assessed that PTSD symptoms interfered with occupational functioning and social relationships for the Veteran. The VA examiners and treating VA providers assigned GAF scores of 51 and 60 (September 2004), 60 (August 2005), 65 (July 2007), 41 (October 2008), and 45 (January 2012) on the basis of PTSD. A GAF score is probative, as it relates directly to a veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). A GAF score of 41-50 contemplates serious symptoms or any serious impairment in social or occupational functioning. See DSM-IV at 44-47. The Board notes that the Veteran's GAF scores of 41 and 45 are consistent with the symptomatology shown in contemporaneous treatment records. The GAF score of the January 2012 VA examiner takes into account all of the medical evidence of record, lay and objective, for the rating period on appeal, such that a fuller picture of the nature and history of the Veteran's PTSD is provided. See 38 C.F.R. § 4.2 (2012) (it is the responsibility of the rating specialist to interpret reports of examination in the 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). VA examination reports and treatment records indicate that the Veteran's PTSD symptoms were productive of severe occupational and social impairment, with reduced reliability and productivity. The Board acknowledges that the Veteran, through his representative, complained of severe symptoms and that his symptoms had increased such that his daily functioning was impaired. The Veteran complained of nightmares, anger, hypervigilance, anxiety, recurrent intrusive thoughts, and depression. At his July 2007 VA intake evaluation and January 2012 VA examination, he also complained of poor concentration, irritability, and some avoidance behaviors. At the August 2005 VA examination, he complained of memory problems. In this case, however, these symptoms are described as severe. At a September 2004 VA mental health assessment, according to the VA provider, the Veteran had depression and anxiety, but did not have suicidal or homicidal ideation, delusions or hallucinations, or panic attacks; he had mild memory loss, but normal thought processes. At the August 2005 VA examination, the Veteran was alert and oriented, with good eye contact and coherent speech, but his grooming was indifferent and he had mild difficulty with memory. Although the VA examiner noted that the Veteran's anti-social personality disorder was responsible for the Veteran's exaggeration of symptoms, poor work history and marital or other deep relationships, resentment of authority, irritability and hostility, and poor impulse control and judgment, the Veteran scored as severely depressed upon psychological testing and he consistently reported experiencing nightmares and intrusive thoughts. The Court has held that when a claimant has both service-connected and non-service-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Moreover, in July 2007, the Veteran complained of depression, hypervigilance, sleep impairment, and intrusive thoughts. Significantly, the Veteran's VA treating provider, in an October 2008 letter, stated that the Veteran had severe PTSD symptoms, with limited work abilities due to attention and concentration problems, as well as depression, anxiety, and poor motivation and excessive anger. Although VA treatment notes from this same provider, dated from 2006 through 2011, indicate that the Veteran is alert and oriented, with appropriate speech and behavior, and without evidence of suicidal or homicidal ideation, the January 2012 VA examination report showed that the Veteran had poor grooming, a desire to harm others, panic attacks, disturbance of mood and motivation, impaired judgment, difficulty adapting to stressful circumstances such as a work environment, inability to establish and maintain effective relationships, and depression. An addendum to the January 2012 VA examination report indicates that the Veteran's poor impulse control, criminal behavior, disregard for others, and repeated pattern of deceit in communications to his mental health professionals are indicative of his anti-social behavior, and that his re-experiencing, avoidance, and increased arousal were associated with his PTSD, but nonetheless opined that the Veteran's PTSD symptoms were severe and productive of impairment of the Veteran's ability to focus, process information, utilize short-term memory, and complete daily tasks. The VA examiner further opined that the Veteran is totally and completely unemployable. In consideration of the foregoing, the Board has considered all of the Veteran's psychiatric symptoms in reaching its decision regarding entitlement to a higher rating, as they impact occupational and social impairment. The Board particularly notes that the Veteran's PTSD, standing alone, has been consistently characterized as severe. However, the Board finds that the criteria for a disability rating of 100 percent have not been met or more nearly approximated for any part of the rating period on appeal. Although several of the Veteran's treating providers, including the 2008 letter from his treating provider at VA and the January 2012 VA examination report, opined that the Veteran incapable of maintaining employment, the evidence does not show that the Veteran experiences total occupational and social impairment due to grossly impaired thought processes, persistent delusions and hallucinations, persistent danger of hurting himself or others, or intermittent inability to perform activities of daily living, as contemplated by a 100 percent disability rating under Diagnostic Code 9411. As previously discussed, the Board acknowledges that the Veteran's PTSD symptoms are suggestive of deficiencies in work, family relations, judgment, thinking, and mood. Nonetheless, as noted in the August 2005 VA report, and the Veteran's VA treatment records, the Veteran's functional impairments are not so severe as to impair his thought processes; there was no evidence of delusions or hallucinations and the Veteran did not have any active or passive suicidal ideation. Further, VA treatment records, including the July 2007 intake report, are negative for evidence of psychosis; the Veteran is able to communicate effectively and he is alert, oriented, and cooperative. Additionally, the VA examination report in August 2005 shows that the Veteran did not have cognitive impairment, his speech was normal, and the examiner noted that that the Veteran was able to function effectively within certain parameters. At that time, the Veteran was able to work as a driver for a lawn service. At the time of the January 2012 VA examination, the examiner noted that the Veteran had reported worsening symptoms since the last VA examination, particularly anger outbursts, startle response, nightmares and sleep disturbance. Significantly, the VA providers assessed that the Veteran's service-connected PTSD was as previously characterized and was productive of severe, but not gross or totally disabling, effects on his activities of daily living. For these reasons, the Board finds that a preponderance of the evidence is against an initial disability evaluation in excess of 70 percent for PTSD for the entire period. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Considerations The Board has considered whether referral for an extraschedular evaluation is warranted for PTSD. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation 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." See 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, 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 extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's PTSD is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9411, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's PTSD has manifested severe occupational and social impairment with has manifested nightmares, recurrent and intrusive distressing thoughts, social avoidance, difficulty sleeping, chronic and explosive irritability, and frequent periods of depression. See Mauerhan, supra. These symptoms are part of the schedular rating criteria, or otherwise "like or similar to" the rating criteria. The GAF scores indicated by the DSM-IV, which are some evidence of the overall degree of occupational and social impairment, are incorporated as part of the schedular rating criteria. See 38 C.F.R. § 4.130. The disability rating schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. See 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with PTSD, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Legal Criteria for Entitlement to TDIU VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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). A threshold requirement, however, for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is 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). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where a Veteran is unemployable by reason of his or her service-connected disabilities, but fails to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation and Pension Service. 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 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 a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). Analysis for Entitlement to TDIU The Veteran's sole service-connected disability is PTSD, now evaluated as 70 percent disabling. As such, this disability satisfies the percentage rating standards for individual unemployability benefits. 38 C.F.R. § 4.16(a) (if there is only one service-connected disability, it must be rated at 60 percent or more for TDIU consideration). The Veteran, on his TDIU application, received in December 2011, reported that he became too disabled to work in January 2006; according to the Veteran, he last worked full time in December 2005 as a clerk for a company that is no longer in business. He also reported that he completed 2 years of high school. After reviewing all the evidence, lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran's service-connected PTSD, alone renders him unemployable. The Board acknowledges that the medical evidence indicates that the Veteran may have other medical conditions that affect employability; the Board notes that the August 2005 VA examination report, as well as the Veteran's VA treatment records, include some indication that Veteran's employability is effected by incarceration and anti-social personality disorder. The Veteran's psychiatric review for purposes of Social Security Administration disability benefits opined that the Veteran's allegations of the effects of PTSD on his employability are not fully credible, and that the Veteran was not severely impaired due to his PTSD. According to the report, the Veteran is capable of sustaining gainful employment from a psychological stand point; his PTSD does not restrict his activities of daily living, or prevent him from maintaining concentration, pace, and persistence in the workplace, and has only mild effects on social functioning. While the records of the Social Security Administration may be considered, the determination of the Social Security Administration regarding employability is not binding on VA. In determining unemployability status, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the above percentages for service-connected disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. The question that must be considered is whether the severity of his service-connected disability likely prevents him from gaining or maintaining substantially gainful employment. The evidence weighing in the Veteran's favor includes that the addendum to January 2012 VA examination report, which found that the Veteran was totally and completely unemployable. According the VA examiner, the Veteran is unemployable due to severe daily PTSD symptoms which impair his ability to focus, process information, utilize his short term memory, and complete daily necessary tasks. The Board also notes that the VA examiner indicated that examples that support the conclusion that the Veteran is unemployable include history of repeated inability to keep a job after he got out of prison, repeated patterns of taking remark personally, and overtly aggressive approach to dealing with situations and other people's behavior, and extremely limited job-related skills due to 20 years of institutionalization. In determination that the Veteran was unemployability, the examiner concluded that severe daily PTSD symptoms impaired his ability to focus, process information and utilize short-term memory and complete daily tasks, and indicated that the was totally and complete unemployable in all regards. The examiner attributed unemployability to PTSD symptoms. The other symptoms noted were not found to be solely effecting employment. As such, the opinion supports the conclusion that PTSD symptoms cause the inability to obtain or maintain substantially gainful employment. Additionally, the Veteran's treating provider, in an October 2008 letter, indicated that the Veteran's PTSD rendered the Veteran totally and completely unable to work due to severe nightmares, flashbacks, anxiety, depression, and anger control problems. The evidence weighing in the Veteran's favor also includes that the assigned disability rating of 70 percent for the service-connected PTSD, which represents a finding of severe occupational and social impairment. Based on the foregoing, the Board finds that the evidence is in equipoise as to whether the Veteran's service-connected PTSD renders him unable to obtain or maintain substantially gainful employment and there is competent and probative evidence indicating that PTSD symptoms cause unemployability. For these reasons and bases, and resolving reasonable doubt in the Veteran's favor, the Board finds that a TDIU is warranted. 38 C.F.R. §§ 3.340, 3.341, 4.15, and 4.16. ORDER An initial disability rating of 70 percent for PTSD is granted. A TDIU is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs