Citation Nr: 1305685 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 10-36 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) prior to May 20, 2010. 2. Entitlement to a rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) beginning May 20, 2010. 3. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran appellant had active service in the United States Army from August 1966 to August 1968, including a year in Vietnam; he was awarded the Combat Infantryman's Badge (CIB). This matter originally came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Denver, Colorado. The Board remanded the case for additional development in July 2012. The case has now been returned to the Board for appellate review. While the case was in appellate status, the appellant's initial disability evaluation for his PTSD was increased from 30 percent to 50 percent, effective from May 20, 2010; this created a staged rating for PTSD. However, it is presumed that the appellant was seeking the maximum benefit allowed by law and regulation for that disability, and "it follows that such a claim remains in controversy where less than the maximum available benefit is awarded." AB v. Brown, 6 Vet. App. 35, 38 (1993). Because neither of the two assigned evaluations at issue represents the maximum rating available for PTSD, the appellant's increased rating claims have remained in appellate status. Therefore, the issues on appeal are as listed on the title page. The Veteran is appealing the initial rating that was assigned for PTSD after service connection was granted. As such, the guidance of Fenderson v. West, 12 Vet. App. 119 (1999) is for application. In June 2012, a Board videoconference hearing was conducted before the undersigned Veterans Law Judge who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7107. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. The appellant's current psychiatric diagnosis is PTSD; the GAF scores assigned by his mental health care providers between 2009 and 2012 ranged from 40 to 48. 2. Throughout the appeal period, the appellant's psychiatric disability has been manifested by hypervigilance, social isolation, intrusive memories, anxiety attacks, difficulty sleeping, nightmares, depression, irritability, panic attacks, labile mood, angry outbursts, difficulty with memory and concentration, periods of talking to himself, preoccupation, disorganization, difficulty in adapting to stressful circumstances (including work or a worklike setting) and an inability to establish and maintain effective relationships. 3. Throughout the appeal period, the appellant's psychiatric disability is not shown to have caused him to experience 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; or any other symptoms of equivalent nature and gravity. 4. The appellant last worked on March 5, 2009. 5. As of March 6, 2009, the appellant's single service-connected disability (PTSD) was of such nature and severity as to prevent him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 70 percent, but not more, have been met for the appellant's PTSD. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.126, 4.130 Diagnostic Code 9411 (2012); Fenderson v. West, 12 Vet. App. 119 (1999). 2. The criteria for a total rating based on individual unemployability due to service connected disabilities (TDIU) were met as of March 6, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA's duty to notify and assist claimants in substantiating their claims for VA benefits is codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1) (2009). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or a Supplemental Statement of the Case (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant with a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the notice requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA letters dated in August 2007, and May 2009, provided the appellant with the Dingess notice. The appellant's PTSD increased rating claim arises from his disagreement with the initial evaluation that was assigned to that disability following the grant of service connection. Courts have held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven. As a result, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Turning to the appellant's other claim, a claim for TDIU is a claim for increased rating. Hurd v. West, 13 Vet. App. 449 (2000). As noted above, in a claim for an increased rating the notice requirement is for generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores, supra. The RO sent the appellant a notice letter on the issue of TDIU in May 2009, prior to the appealed RO adjudications of that claim in June 2009, and September 2009. The notice letter informed the appellant of the VA notice and duty-to-assist provisions and of the information and evidence necessary to substantiate the claim. That notice letter also informed him of the respective roles of the Veteran and VA in developing the claim and obtaining evidence, with the ultimate responsibility for ensuring that relevant evidence is obtained being on the Veteran. The letter also provided the appellant with general notice of the evidence required to satisfy the claim. The May 2009 notice letter also provided the appellant with notice of how disability ratings and effective dates are assigned. By this letter the RO was complying with the requirements of Dingess, supra. The appellant was thereafter afforded further readjudication of the TDIU claim in the August 2010 SOC, the May 2012 SSOC and the December 2012 SSOC. Therefore, VA has no outstanding duty to inform the appellant that any additional information or evidence is needed for his tiered PTSD increased rating claim or his TDIU claim. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). The appellant's VA medical treatment records (including those maintained in the Virtual VA paperless claims processing system) and a Vet Center report have been associated with the claims file. The appellant was afforded VA mental health examinations in January 2009, May 2010, and August 2012. A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). These examinations were conducted by medical professionals, and the associated reports reflect review of the appellant's prior medical history. The examinations included a report of the symptoms for PTSD and demonstrated objective evaluations. The examiners were able to assess and record the appellant's mental health status and how his capacity for employment was affected by his PTSD. The Board finds that the January 2009, May 2010, and August 2012 examination reports were each sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings. In addition, it is not shown that any one of these three examinations was in any way incorrectly conducted. It is not shown that any VA mental health examiner failed to address the clinical significance of the appellant's psychiatric disability. Further, each VA examination report addressed the applicable rating criteria. As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. § 3.326; 38 C.F.R. § 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991). Therefore, the Board concludes that the appellant was afforded adequate examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A remand from the Board or from the United States Court of Appeals for Veterans Claims (Court) confers upon a veteran the right to substantial, but not strict, compliance with that order. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this case, pursuant to the July 2012 Board remand, the appellant was scheduled for a VA a mental health examination in May 2012. In addition, additional medical records were gathered and associated with the claims file. Therefore, substantial compliance has been achieved. The appellant was duly afforded the opportunity to produce additional evidence to support his claims. Thus, the Board determines that the evidentiary record is adequate. In view of the foregoing, the Board finds that all notification and development actions needed to render a decision on the appellant's claims for the benefits on appeal herein adjudicated have been accomplished. II. The Merits of the Claims The appellant contends that he is entitled to a higher disability rating for his service-connected psychiatric disability. He also contends that he is unable to work due to his service-connected PTSD. The appellant testified at his June 2012 Board videoconference hearing that he had problems sleeping with nightmares on many nights. He stated that anxiety caused to have to get up quite often. The appellant further testified that he got angry a lot and try to stay busy to avoid that. He reported that he did not socialize, that he had stopped looking for work, that he sat at home pretty much, that he got depressed and that he felt that some of his problems on the job when he was working were related to his PTSD. A. Evidence of record The evidence of record includes an August 2009 Vet Center treatment evaluation summary. The appellant was described as having exacerbated PTSD symptoms with moderate to severe depression and anxiety. He was noted to sometimes spend three days in his room where he blocks out everything and is in another world. The appellant reported having panic attacks once daily and his daughter-in-law said that the appellant talked to himself a lot. Psychological testing (PHQ-9) revealed moderate depression and the evaluator noted that the appellant exhibited circumstantial speech. The appellant was assigned a GAF score of 43. The evidence of record includes a number of third party statements. In statements dated in April 2009, the appellant's son noted that the appellant had conversations with himself, that he alienated himself from his family and that his temper was his biggest problem; the appellant's wife, brother and sisters also noted problems with anxiety, anger and temper with escalation of these problems. The appellant submitted a statement from his former supervisor in July 2009. The supervisor reported working with the appellant for five years and stated that he was always angry, moody and negative for the majority of the work day. The supervisor thought that the appellant had some kind of disorder that prohibited him from being able to function properly in the workplace. In March 2010, the appellant's brother stated that there had been many changes since March 2009, in that the appellant's mental state was worse and that he often sounded depressed and gave the impression that he did not care about anything. He described memory problems and the appellant being preoccupied and having panic attacks. In a May 2012 letter, the appellant's son described sleepless nights, bad anxiety and blowing up at any time. The appellant's spouse reported that the appellant's mental well being had deteriorated, that he had violent temper tantrums, that he had anxiety and mood swings and that he talked to himself a lot. She said he constantly paced the floor. Review of the appellant's VA outpatient treatment records reveals that he was described as being very stressed in April 2009, with his recent loss of job and it was indicated that he was unable to return to his previous employment due to depression. In July 2009, the appellant asked for medication to help with his PTSD symptoms. A November 2009 mental health triage note indicated that the appellant endorsed depression and anxiety with poor sleep. He reported having nightmares every night and indicated that he was more irritable and angry. It was clear that the appellant was experiencing heightened hyperarousal signs and symptoms with an increase in his PTSD signs and symptoms. The diagnosis was PTSD, chronic with acute exacerbation. In December 2009, a VA psychiatrist noted that the appellant reported having great difficulty with his anxiety, having issues with managing his anger, being irritable, having a short fuse and having serious issues with sleep. The doctor described the appellant as highly reactive with intense anxiety and intense reactivity. The doctor noted that the appellant had no history of suicide attempts. On mental status examination, the psychiatrist noted that one got the sense that the appellant struggled to "hang on". The appellant demonstrated linear and organized thoughts. He did not have any delusions or hallucinations. There was no suicidal or homicidal ideation. The doctor stated that the appellant had classic symptoms of PTSD, including nightmares, intrusive thoughts, re-experiencing avoidance and labile mood. A March 2010 ambulatory care outpatient note indicates that the appellant's biggest problem was his PTSD memory disorder. He was described as having too many thought racing with his PTSD. In a May 2010 VA mental health medication management note, the appellant's spouse was reported as saying that the appellant's disorganization had been worse in the prior few years and that he had not always been that way. The appellant was noted to be disorganized and disconnected during the office visit. He was noted to always seem preoccupied. The appellant was noted to have good grooming and hygiene. On mental status examination, his speech was normal. Thought process was disconnected unless the appellant was feeling affect which seemed to organize him. His mood was euthymic and his affect was non-labile. His mood was congruent and his thought process was logical. The appellant did not have any homicidal or suicidal ideation. He did not have any psychotic symptoms. His cognitive function, insight and judgment were all described as grossly intact. The psychiatrist rendered diagnoses of PTSD and depression and assigned a GAF score of 45. A VA nurse practitioner, in an October 2011 ambulatory care note, stated that she did not think that the appellant was going to maintain gainful employment. She noted that, just in the dealings in clinic, it was difficult for him to make clinic appointments, to make followups. He did not keep his medication changes straight and his communication skills were described as poor. She thought he would not tolerate working in crowded situations with others and noted that he got very nervous when coming down to the city. She did not think that the appellant was going to be able to work in environments where he was around a lot of people and that, with the all the issues, his PTSD and hypervigilance, that he could not be with many people or deal with traffic, and at the same time, with loose structure, she thought he just was not focused enough. However, she thought his concentration was such that he could manage on his own. A May 2012 VA mental health triage note indicates that the appellant denied suicidal ideation. He also denied homicidal ideation, although he indicated that he did get triggered with violent thoughts. The appellant was described as having control over his behavior and he denied problems with fighting. In June 2012, the appellant was noted to have always had at baseline intrusive memories, irritability and nightmares. He was noted to have become increasingly depressed, more easily angered, more hypervigilant and having more problems with sleep. He said his appetite had declined and complained of his "terrible" concentration. He said that he was anxious and close to tears all the time. He denied having any plans for suicide. On mental status examination, the appellant was noted to have good hygiene and grooming. His mood was very dysphoric and his speech was halting at times. His thought process was logical and he had no psychotic symptoms. He did not have any suicidal or homicidal ideation. His cognitive functions, insight and judgment were all grossly intact. The psychiatrist assigned a GAF score of 40 and stated that, given the severity of the appellant's chronic PTSD with irritability, inability to deal with people, lack of concentration and depression, he was unemployable from a clinical standpoint. The appellant underwent a VA examination in January 2009; the examining psychiatrist reviewed the appellant's claims file. The appellant's symptoms included hyperarousal, re-experiencing of traumatic events and avoidance behaviors. He said that he was unable to fall asleep without sleeping medications which helped him to get about five or six hours of sleep. He said that he had frequent vivid nightmares of Vietnam. His anxiety level was very high. The appellant reported infrequent panic attacks and said that they were not incapacitating. The appellant reported having problems with his temper that he was embarrassed about. He said that he had never been violent towards anyone and that he generally tried to hide his irritation from others. He tended to isolate himself from social situations. He denied suicidal thinking. He reported having difficulty motivating himself and sometimes feeling hopeless about his future. He denied having auditory or visual hallucinations. On mental status examination, he was neatly groomed and his mood was anxious. He lost focus when he became more anxious. He showed difficulty with concentration. The examiner concluded that the appellant had chronic moderate to severe symptoms of PTSD with secondary depression. He was noted to be able to maintain activities of daily living, including personal hygiene. Verbal aggressiveness was the only noted inappropriate behavior. His thought processes and communication were noticeably impaired by anxiety and avoidance behaviors. The examiner opined that the appellant was employable, especially in settings with little or no public contact and loose supervision. The examiner assigned a GAF score of 58 for the prior three months. The appellant underwent another VA examination in May 2010; the examining psychologist reviewed the claims file. The appellant reported that he had not worked since his March 2009 dismissal from his job. He said his marital relationship was distant and that he did not do things socially. He had no history of violence or assaultiveness since the last evaluation and no history of suicide attempts. On mental status examination, the appellant exhibited no impairment of his thought processes or communication, although he did seem to have some slight paranoid-like ideation about why he was fired. He was hypervigilant in the session, and often turned at slight noises coming from the other side of the door during the examination. He had no delusions or hallucinations. His eye contact was good and other than the hypervigilance, his behavior was appropriate throughout the session. He had no suicidal or homicidal thoughts, ideation, plans or intent at the current time. He had the ability to maintain minimal personal hygiene and other basic activities of daily living. He was oriented to person, place and time. The appellant complained of memory loss or impairment, but the examiner thought that the appellant was describing himself as not concentrating on things that others said to him as opposed to memory loss, as he often could tell somebody what they just told him within a few seconds afterwards, suggesting he was not listening well. No obsessive or ritualistic behavior was noted. His rate and flow of speech was within normal limits and logical, although when he talked about his being fired at work he was more pressured and sped up his speech and spoke more loudly. There was no evidence of panic attacks. The appellant endorsed re-experiencing via daydreams and intrusive thoughts about Vietnam plus having dreams about many subjects that he remembered nightly and many of these were about combat situations. He continued to have avoidance numbing and did not go out of the house much except to gamble to relax at the casino, when he knew that it was a day of the week when it was less likely crowds would be there and to get out of the house at those times. He stated that he did not feel worthy of anything anymore. He reported having difficulty concentrating and difficulty with hypervigilance. The examiner rendered a diagnosis of PTSD and assigned a GAF score of 55. The examiner stated that the appellant had some moderate symptoms of PTSD which caused him to have moderate difficulty in social and occupational functioning. The examiner stated that the appellant's thought process and communications were not impaired although his social functioning was markedly impaired by social withdrawal and irritability when he was in social settings. The examiner opined that the appellant was employable in a work setting which provides him the opportunity for routine work and minimal contact with others and with loose supervision. The appellant most recently underwent a VA examination in August 2012; the examining psychiatrist reviewed the appellant's claims file. The appellant reported that he had not worked since he had been fired. He was noted to be able to do his activities of daily living and self care. The appellant reported that he helped out with the care of his grandson, that he visited his mother in a facility and that he visited his father at home. He said that he slept six hours per night and that he had nightmares several times per month. The appellant complained of mood disturbances with depression and irritability most days plus feelings of guilt and decreased energy. He also report having decreased interests. The appellant denied suicidal/homicidal ideation, active plans or any history of attempts. He reported no grossly inappropriate behavior and he did not have a history of assaultive behavior. The appellant reported some decreases in focus and memory. He reported chronic anxiety and said that he may have panic attacks from time to time. He denied obsessive and compulsive symptoms. He was avoidant of military subjects and could be slightly socially withdrawn. The appellant was noted to be mistrustful but he denied paranoia. The appellant denied overt psychotic symptoms as well as audio and visual hallucinations. He was noted to talk to himself. On mental status examination, the appellant appeared slightly anxious and confused at times. His thought process was logical. Testing revealed a minor deficit of working memory, attention and focus. The examiner stated that the appellant's social functioning was grossly intact for all basic skills. The examiner noted the appellant had symptoms of sleep disturbance, irritability and social withdrawal. The examiner assigned a GAF score of 55 for the prior three to six months. The examiner opined that the appellant had decreased reliability and productivity due to PTSD and that he retained at least residual cognitive, emotional and behavioral capacities to do at least simple work tasks in a loosely supervised environment. B. Initial ratings for PTSD In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The law provides that disability evaluations are determined by the application of a schedule of ratings that is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether they were raised by the appellant or not, as well as the entire history of the Veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In the evaluation of service-connected disabilities, the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. In this case the evidence reviewed includes the reports of the VA PTSD examinations conducted in January 2009, May 2010, and August 2012; the reports of VA treatment dated between April 2009 and June 2012; a Vet Center report dated in August 2009; the June 2012 Board videoconference hearing testimony; and various written statements submitted by the appellant, his representative and various third parties. While a veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A decision of the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See also Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two disability 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. Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, supra, at 1336 (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Further, in determining the appropriate disability rating, the Board must consider whether the case should be referred for extra-schedular consideration pursuant to 38 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The current regulations state that, under the General Rating Formula for Mental Disorders, a 30 percent evaluation will be assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned 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. A 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, will be rated as 100 percent disabling. Under 38 C.F.R. § 4.130, the nomenclature employed in this portion of the rating schedule is based upon the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition, of the American Psychiatric Association (DSM-IV). As indicated in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995), the GAF is a scale reflecting the psychological, social and occupational functioning on a hypothetical continuum of mental health - illness, and a 51-60 rating indicates moderate difficulty in social, occupational or school functioning. The DSM-IV describes a GAF score of 51 to 60 as reflecting a moderate level of impairment, e.g., flattened affect, circumstantial speech, occasional panic attacks, or moderate difficulty in social, occupational or school functioning, e.g., having few friends or having conflicts with peers or co-workers. See 38 C.F.R. § 4.130. See also Cathell v. Brown, 8 Vet. App. 539 (1996); and Richard v. Brown, 9 Vet. App. 266, 267 (1996), wherein the Court stated that a "GAF of 50 is defined as '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).'" Between August 2009 and August 2012, the appellant's GAF score ranged from 40 to 58, with widely different scores being assigned by VA examiners versus the appellant's treatment mental health professionals. In this case, there is no dispute that Veteran is competent to report his PTSD symptoms because he has personal knowledge as it comes to him through his senses. See Layno v. Brown, supra, at 470. In any case, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See Jandreau v. Nicholson, supra, at 1377 n.4 ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. Here, the Board finds that the Veteran's reported history of continued extensive, frequent and severe PTSD symptoms is competent and credible. As reflected in letters from the appellant's relatives and former work supervisor, the appellant had serious problems with anger management and irritability, as well as problems with getting along with others and functioning in the workplace. Based on the level of depression and anxiety shown, as well as reports of panic attacks, problems with concentrations and communication and problems with anger, the Board finds that an initial 70 percent rating is warranted. This is consistent with the reported GAF scores from the appellant's mental health care providers and the symptoms described in the lay evidence of record. In essence, GAF scores have been reported in the 40s and 50s. A GAF in the 40-50 range is reflective of "serious symptoms," a GAF in the 50s is reflective of "moderate symptoms." At worst, the medical and lay evidence, as well as the GAF scores, supports serious symptoms, consistent with a 70 percent rating. However, a rating in excess of 70 percent is not warranted. Specifically, the Veteran is not shown to have gross impairment in his thought process, insight or judgment. Rather, the evidence shows that his thoughts are logical and no hallucinations have been noted throughout the period on appeal. Further, the evidence does not show grossly inappropriate behavior, an inability to perform daily activities, danger of hurting self or others, or an inability to maintain activities of daily living. The appellant is able to take care of his grandson and look after his parents. The evidence reported above reflects that the appellant has exhibited some PTSD symptoms that are enumerated among the criteria of both the 50 percent and 70 percent ratings. While further medical inquiry could be conducted with a view towards resolution of this question, it is doubtful that such research would assist the Board in its inquiry. See e.g., Mittleider v. West, 11 Vet. App. 181, 182 (1998) (Observing that when it is not possible to separate the effects of a service-connected condition and a non-service-connected condition, the provisions of 38 C.F.R. § 3.102 mandates that reasonable doubt on any issue was to be resolved in the veteran's favor, and that all signs and symptoms be attributed to the service-connected condition). Affording the Veteran the benefit of the doubt on the question of the severity of the disability under consideration, the Board finds that there is enough evidence to support a schedular evaluation of 70 percent for the appellant's PTSD. The medical evidence shows that the appellant's PTSD symptomatology was severe enough to result in social isolation, anxiety, depressed mood, chronic sleep impairment, impairment of concentration and memory loss, difficulty controlling mood/irritability and difficulties with interpersonal relationships at work and at home. These symptoms were severe enough that the predominant GAF scores assigned by VA treating mental health professionals were between 40 and 50. Furthermore, the appellant's PTSD symptoms resulted in the need for psychiatric outpatient treatment, as well as a continuing need for medication. These PTSD symptoms more closely approximate the criteria for a 70 percent evaluation. However, the appellant is not entitled to an evaluation in excess of a 70 percent. The evidence of record does not indicate that he experiences 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. The objective findings of the appellant's VA outpatient psychiatric treatment and the reports of his VA psychiatric examinations contain no evidence that the appellant's symptoms are so incapacitating as to border on gross repudiation of reality. In each instance, the appellant has been found to be oriented and capable of expressing himself in a coherent and fairly logical manner and, despite some significant psychiatric symptoms, the appellant's speech, behavior and manner were essentially appropriate much of the time. The clinical assessments of record are considered persuasive as to the appellant's degree of impairment due to his PTSD since 2008 because they consider the overall industrial impairment due to that service-connected disability. In addition, based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate. The Board has not found any variation in the appellant's symptomatology or clinical findings that would warrant the assignment of any staged ratings in this case. Therefore, the Board finds that a 70 percent rating, but no more, is warranted effective August 4, 2008. Notwithstanding the above discussion, a rating in excess of the assigned schedular evaluations for the appellant's service-connected disabilities may be granted when it is demonstrated that the particular disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Therefore, 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, supra. The Board has considered the provisions of 38 C.F.R. § 3.321(b)(1) but finds no evidence that the Veteran's PTSD has caused marked interference with employment beyond that contemplated by the schedule for rating disabilities. His psychiatric symptomatology has not rendered impractical the application of the regular schedular standards in this case. Specifically, the evidence does not demonstrate any period of psychiatric hospitalization or the need for any extensive treatment other than regular and routine medication and counseling. Between 2008 and 2012, the Veteran was never hospitalized for any psychiatric treatment. Further, there is no indication in the record that the average industrial impairment from the PTSD would be in excess of that contemplated by the assigned rating. Even with complaints of sleep deprivation from nightmares, angry outbursts, irritability, lack of motivation, inability to form or maintain relationships, social isolation and occasional panic attacks, the Veteran has demonstrated the ability to generally keep track of numerous health care providers, appointments and medications; to manage his VA appeal; to participate in the care of his grandson; to drive to visit his mother in a nursing home; and to drive to visit his father's home. Accepting that the appellant experiences serious occupational impairment, there is no indication in the record that the average industrial impairment from his PTSD would be in excess of that contemplated by the assigned rating on appeal. The Court has held that, "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." Thun, 22 Vet. App. at 15. Therefore, the evidence does not show that the appellant's PTSD presents such an unusual or exceptional disability picture as to require referral for an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b). See Floyd v. Brown, 8 Vet. App. 88, 96 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996) (when evaluating an increased rating claim, it is well established that the Board may affirm an RO's conclusion that a claim does not meet the criteria for submission for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1), or may reach such a conclusion on its own). B. TDIU claim VA will grant a total disability rating for individual unemployability (TDIU) when the evidence shows that a veteran is precluded, by reason of his service-connected disability or disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating may be assigned, where the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the appellant has only been granted service connection for PTSD. The appellant's disability evaluation for that single disability has been rated as 70 percent disabling since the grant of service connection for PTSD. Therefore, the aforementioned TDIU requirement of a disability rating of at least 60 percent when there is a single disability has been met at throughout the appeal period. The only question remaining is whether there is evidence that the Veteran is unable to secure and maintain substantially gainful occupation as the result of his service-connected disability. The appellant has worked during the appellate period. A VA Form 21-4192 was filled out by the appellant's employer in July 2009. The employer stated that the appellant had worked until March 5, 2009, and that he had been let go for failure to complete job duties as assigned. There is medical evidence and lay evidence of record to indicate that the appellant's capacity for individual employability has been compromised by his service-connected PTSD. There is also medical evidence, namely the three VA examination reports of record, that the appellant is capable of employment. The appellant has presented statements that he is incapable of working due to his service-connected PTSD. There are Vet Center and VA medical statements of record dating back to 2009 that state that the appellant was unable to engage in any employment as a result of his PTSD. A statement from the appellant's former supervisor includes an observation that the appellant was not able to function properly in the workplace. Moreover, the appellant's most recent VA treatment records dated in June 2012 contain a psychiatric opinion that the appellant is unemployable from a clinical standpoint due to his PTSD. In this case, further inquiry could certainly be undertaken with a view towards development of the TDIU claim. However, as noted above, the reasonable-doubt rule operates in favor of the claimant when the positive and negative evidence is in approximate balance. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Here, the Board is of the opinion that this point has been attained. Therefore, based on the totality of the evidence of record, and giving the benefit of the doubt to the appellant, the Board finds that evidence for and against the appellant's TDIU claim is at least in approximate balance on the question of whether the appellant is precluded from work by the service-connected PTSD. Thus, entitlement to a total evaluation based on individual unemployability due to service-connected disability has been established as of March 6, 2009. ORDER An initial 70 percent evaluation, but no more, for PTSD is granted, subject to the laws and regulations for the payment of benefits. A total disability rating for individual unemployability due to service-connected disability is granted as of March 6, 2009, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs