Citation Nr: 1312059 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 09-18 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased evaluation for posttraumatic stress disorder (PTSD), currently rated as 50 percent disabling. 2. Entitlement to a total disability evaluation based on individual unemployability due to the appellant's service-connected disorders (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty from May 1968 to August 1969. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Following the perfection of his appeal, the appellant presented testimony before the undersigned Veterans Law Judge (VLJ) in September 2011 in Los Angeles. A transcript of that hearing was prepared and has been included in the claims folder for review. The claim was subsequently reviewed by the Board which, in turn, issued a Decision in February 2012. In that action, the Board awarded a 50 percent disability rating, but no higher, for the appellant's service-connected psychiatric disorder. The appellant was provided with a copy of the Board's Decision and he then appealed to the United States Court of Appeals for Veterans Claims (Court). Upon further review of the Board's Decision and a Joint Motion for Remand submitted by the opposing parties, the Court effectuated the Joint Motion for Remand (JMR) via an Order issued in August 2012. In effectuating the JMR, the Court expressed agreement with the 50 percent disability rating assigned for the appellant's psychiatric disorder but found that the Board did not adequately explain why a disability rating in excess of 50 percent was not assigned. Hence, the Board's Decision was partially affirmed and partially vacated. The claim has since been returned to the Board for review. The Board would note that since the publication of the JMR and Order, the appellant's accredited representative has submitted additional medical evidence directly to the Board. It is noted that the appellant's accredited representative specifically waived initial consideration by the Agency of Original Jurisdiction (AOJ) of this additional evidence. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for benefits. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, the appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) (2012) and that the Board can adjudicate the claim based on the current record. During the course of the appeal, the appellant, along with his accredited representative, has insinuated that he is unable to work as a result of his service-connected disabilities. Although this issue has not been developed by the AOJ, it is part and parcel of whether a higher disability rating should be assigned for PTSD. The Board finds that its jurisdiction in this matter has been triggered and the issue will be discussed below and has been added to the front page of this decision. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). FINDINGS OF FACTS 1. The appellant's service-connected PTSD is manifested by symptoms of difficulty concentrating, anxiety, anger outbursts, irritability, depression, extreme sleeplessness, and Global Assessment of Functioning (GAF) scores ranging from 49 to 65. This condition has caused the appellant to be extremely withdrawn from others including his family. Nevertheless, the disability is not manifested by total occupational and social impairment. 2. Service connection is established for PTSD, a skin disorder classified as recurrent dermatitis and scrotal abscess, and the residuals of a fracture of the right wrist. The appellant's combined rating is 70 percent. 3. The evidence of record indicates the appellant has four years of high school and experience working as a plumber. He last worked in 2005. 4. The appellant's service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation of 70 percent, but no higher, for the appellant's service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1- 4.14, 4.130, Diagnostic Code 9411 (2012). 2. Resolving all reasonable doubt in the appellant's favor, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant seeks a disability rating in excess of 50 percent for his service-connected psychiatric disorder. He also, through his attorney, has asked that a total disability evaluation be assigned. The Board initially notes that it has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Increased Evaluation-PTSD I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable rating decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the VCAA. The record indicates that the appellant was provided notice in a letter sent to him from the RO in April 2007. The letter informed the appellant that VA would assist him in obtaining any documents that it was made aware thereof that would assist in the decision-making process of the claim. He was further told that he could proffer any documents or statements in support of his claim, and that all items would be considered when a decision on the merits of his claim was made. He was subsequently informed how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). All that the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error). In view of the foregoing, the Board finds that the appellant was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. VA also fulfilled its duty to assist. In this instance, VA obtained the appellant's available medical treatment records, including requesting any treatment records from the facilities the appellant had been treated by, and other records of which VA was made aware. Given the foregoing, the Board finds that VA has substantially complied with the duty to procure the necessary medical and other records. Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. In this respect, the record reflects that the appellant underwent psychiatric examinations in June 2007 and May 2010. The results of those examinations have been included in the claims folder for review. The reports involved a review of the claims folder, the appellant's available medical records, an interview with the appellant, and the results of an actual examination of the appellant. Therefore, the Board finds that these reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the appellant's claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance that reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the appellant is represented in this appeal and over the course of the appeal, the accredited representative has submitted argument on behalf of the appellant. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). Moreover, the appellant has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the appellant has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. II. Laws and Regulations-Increased Ratings Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (2012) requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 (2011) requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.7 (2011) provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. The regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the evaluation of a service-connected disability requires a review of the appellant's medical history with regard to that disorder, the Court has held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Id.; Peyton v. Derwinski, 1 Vet. App. 282 (1991); 38 C.F.R. §§ 4.1, 4.2 (2012). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 506 (2007). An evaluation of the level of disability present also includes consideration of the functional impairment of the service member's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). The appellant's PTSD has been rated pursuant to the criteria found at 38 C.F.R. Part 4, Diagnostic Code 9411. 38 C.F.R. § 4.130 (2012) establishes a general rating formula for mental disorders. The formula assesses disability according to the manifestation of particular symptoms, providing objective criteria for assigning a disability evaluation. Under the criteria, a 30 percent disability rating is warranted 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, or recent events). A 50 percent rating is warranted 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. The next higher rating, a 70 percent rating, may be 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 work-like setting); inability to establish and maintain effective relationships. The highest, or 100 percent schedular evaluation, contemplates 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. Part 4, Diagnostic Code 9411 (2012). In evaluating psychiatric disorders, the Board is mindful that the use of the term "such symptoms as" in 38 C.F.R. § 4.130 (2012) demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2012). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2012). In evaluating psychiatric disorders, VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130 (2012). As such, the diagnosis of a mental disorder should conform to DSM-IV. See 38 C.F.R. § 4,125(a) (2012). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). III. Facts and Discussion In February 2007, the appellant contended that he was entitled to an increased rating for his service-connected PTSD, currently evaluated as 30 percent disabling. VA treatment records beginning in 2006, and extending to the end of 2012, show that the appellant initially attended counseling sessions and was treated with Sertraline for depression, and prescribed Zoloft. He reported that he had difficulty maintaining sleep. In addition, the appellant reported that he felt anxious and irritable, had poor concentration, and at times was unable to remember his plans. The appellant's mood was depressed. He did not exhibit a formal thought disorder, and he had no delusions or hallucinations. He denied any suicidal or homicidal ideation, was alert and fully oriented. In conjunction with his request for an increased evaluation, the appellant was afforded a VA Psychiatric Examination in June 2007. The examiner reviewed the appellant's medical records and history of in-service stressors. The appellant reported that over the previous few years he attended counseling at the VA hospital on a regular basis, and was treated with Zoloft. He further indicated that it was opinion that his symptoms were worsening. Specifically, he averred that he experienced intrusive thoughts accompanied by feelings of anxiety and vivid memories of his stressors once to twice daily. The appellant stated that such thoughts were triggered or aggravated by the news, especially regarding the current war in Iraq. Additionally, the appellant told the examiner that he was having nightmares four to five times a week, and awakening sweaty with anxiety. He reported that he felt anxious most of the time, and depressed all of the time. He further complained of loud noises and helicopters because they frightened him and caused him to feel as if he were in danger. The report indicated that the appellant had retired from work two years earlier, having worked as a plumber, because of chronic pain in his knees and symptoms of PTSD. The appellant reported that he slept fitfully. He denied delusions, hallucinations, morbid mood changes, suicidal ideation, and any evidence of psychosis. According to the examination report, the appellant was married, had two grown children, and lived in an apartment with his wife. He denied using street drugs or excess alcohol and he claimed that he did not have a prior history of legal problems. Of note was the fact that the appellant stated that although he could leave his house and visit others, he did not do so and he did not have any outside activities or hobbies. Upon examination, the appellant was found to be neatly and casually groomed, making good eye contact, and pleasant and cooperative. His thoughts were coherent and organized. There was no tangentiality or loosening of associations. The examiner wrote that the appellant's thoughts were relevant and non-delusional, and that there were no signs of bizarre or psychotic ideation. The appellant denied recent auditory or visual hallucinations, and did not appear to be responding to internal stimuli during the interview. The appellant was categorized as being at least moderately depressed, with mild anxiety. He was cooperative, his affect was appropriate, and he was not tearful. When speaking, his rate and tone were normal and his speech did not appear pressured. He was alert and oriented in all spheres and appeared to be of at least average intelligence. The appellant had no difficulty with either current or past memory; could remember five figures forward and three backward; was able to name three of three items immediately and within five minutes. He could recall how President Kennedy died and there were no deficits identified in these areas. It was further written by the examiner that the appellant had a good general fund of knowledge, such that he identified the President of the United States, the capital of California and the capital of the United States. With regard to concentration and calculation, the appellant performed serial 3s and correctly subtracted 7 from 100. He correctly spelled "world" both forward and backward. He was able to follow the conversation well, including interpreting proverbs. The examiner concluded that the appellant had mild but persistent and recently increasing symptoms of PTSD such that it appeared his request for an increase from a 30 percent disability rating "was appropriate." A Global Assessment of Functioning (GAF) score of 50 was assigned. The appellant subsequently wrote to the RO in June 2007 indicating that he had received VA mental health treatment for approximately eight to nine years. He reported that he had asked his family for their insight regarding his disability in order to describe its effects. The appellant related that he was increasingly moody, detached, and less than social. He indicated that he was not very motivated, and found "being communicative" was difficult. He reported that he lost track of conversations, forgot or missed questions, and lost track of tasks that others requested of him or that he set for himself. Moreover, the appellant claimed that he experienced difficulty remembering, even as he was unable to forget-implying his stressors. He reported that he was quick to anger and had minimal patience and tolerance, which was becoming increasingly evident to his family, including his grandchildren. He also complained of interrupted sleep patterns and occasional nightmares. He wrote that he could still see the faces of the young men with whom he had served, some of whom did not return home. As indicated previously, the appellant's VA outpatient treatment records from 2007 to 2012 have been obtained and included in the claims file for review. These records show that in 2007 and 2008, the appellant was attending group therapy. This was in addition to one-on-one assistance from a VA psychologist or psychiatrist. These same records reveal that the appellant has been prescribed a cocktail of pharmaceutical medicines to treat and reduce the symptoms produced by the service-connected psychiatric disorder. These drugs included Zoloft, Wellbutrin, and more recently Prozac. Nevertheless, and despite the medications and therapy, the reports suggest that the appellant continued to be anxious, depressed, and more withdrawn from others (including his children, grandchildren, and wife). The records report manifestations of irritability, memory deficiencies, and concentration breaks. The appellant was labeled as being unmotivated, and that he had problems in his relationships because of his irritability, reclusiveness, and failure to communicate to the point that he avoided conversations. The appellant repeatedly displayed a startle response, presumably heightened, and experienced recollections of war that caused anxiety and irritability. His treatment was continuous during this time even though the records showed that he was no longer using group therapy. These same records note GAF scores mainly ranging from 60 to 65. In July 2008, the appellant expressed disagreement with the June 2007 VA examination report. He claimed that there were inaccuracies in the report and that the examiner was not listening when the appellant was answering the questions asked. The appellant pointed out that although it was true that he had stopped working due to a bilateral knee replacement, it was completely untrue that he told the examiner that he was unable to work due to depression related to PTSD, as reported by the VA examiner. The appellant indicated that the examiner had not taken many notes, and reported his belief that the examiner's memory had failed him in formulating an accurate report. The appellant repeated his previous assertions concerning his physically withdrawing from others, his lack of communication with others, and that he wished that he had the answers and was consumed by a desire to change. To support her husband, the appellant's spouse provided a statement in July 2008. She complained of his nonresponsiveness to others and his "controlling" manner. Although the appellant's youngest daughter and grandchild brought a smile to the appellant's face, the spouse stated that if the appellant thought that neither one was listening to him, his attitude towards them would change in an instant. She described her husband as refraining from laughing, smiling, or easily joining in conversations. For instance, she wrote that they could drive for hours without talking. She further complained about him being short-tempered, explosive (over small things), hiding behind books, and constantly smoking. She described how the appellant questioned whether she needed to buy groceries, and checked the refrigerator and freezer to make sure that there were no duplicates. She also described the appellant as checking the trash to ensure that she had not thrown anything good away, and checking that the recycling was in the appropriate bin. His behavior was classified by his wife as spiteful and explosive. She reported that they no longer had social groups, and that she was tired of trying to answer questions regarding what was wrong with him. She described the appellant as unhappy, and indicated that he cried in his sleep. The Board would note that the medical records in the claims folder do not confirm or corroborate all of the assertions made by the appellant's spouse. They do, however, corroborate an important piece of her statement-that is, the appellant repeatedly admitted that he disliked being social with others, he was becoming more hermit-like, and that only if repeatedly asked by his wife would he venture from his house to have cursory contact with others. The appellant was afforded a second VA psychiatric examination in May 2010. Once again the examiner reviewed the appellant's claims folder prior to the examination. Before the examination, the appellant complained of feeling anxious and depressed. He stated that he lived in Burbank with his wife and that he denied alcohol and drug abuse as well as any legal problems with the law. On examination, the examiner found the appellant alert and oriented times three, properly dressed, and had good hygiene. There was no major disorder of speech. The appellant's thought processes were coherent, such that there was no tangentiality or looseness of associations. His affect was, however, rather constricted, and his mood was mildly guarded and sad. There was no delusional thinking, hallucinations, or suicidal/homicidal ideation. The appellant's intellectual functioning was judged to be poor in relation to his ability to remember addresses or dates, which the examiner stated could relate to the appellant's guarded and anxious mood, rather than any organicity. The appellant's comprehension, abstract thinking and ability to perform calculations were judged to be intact and average. The examiner assigned a GAF score of 50. Additionally, the examiner determined that the appellant manifested PTSD by recurrent, intrusive, and distressing recollections of the traumatic event, and recurrent, distressing dreams of the event. It was further noted that the appellant experienced psychological distress with exposure to internal or external cues that symbolized or resembled aspects of the traumatic event. In addition, the appellant attempted to avoid thoughts, feelings or conversations associated with the trauma, as well as activities, places, or people that aroused recollections of the trauma. The appellant manifested diminished interest and participation in significant activities, as well as restricted range of affect. Sleeplessness, difficulty concentrating, outbursts of anger, and irritability were further documented. Finally, the examiner stated that the appellant had "disturbances" in his social and occupational functioning due to such PTSD-related symptoms. The appellant was considered able to care for his financial affairs. Although the appellant was not considered to be totally incapable of social interaction, the report did not indicate or suggest that the appellant was socializing with others nor was he enjoying activities outside of the home. As previously reported, the appellant testified at a Board hearing in September 2011. During that hearing, the appellant, along with his accredited representative, suggested that his symptomatology included reclusiveness, and described that he typically stayed at home with his wife, read many books, and avoided all other social interaction. The appellant reported that he had considered suicide, but had "never gotten close to acting" on it. Because of his lack of communication with his children, wife, and grandchildren, the appellant complained of being dysfunctional and a failure to his family. The appellant expressed inadequacy and an unwillingness to socialize with friends he had known for many years. Also during the hearing, the appellant complained of sleeplessness, crying, remembrances of Vietnam, and nightmares. The appellant also reported instances of anger, frustration with himself and others, and memory lapses. Following the Board's February 2012 decision and the Court's vacating the decision, the appellant underwent a private psychiatric examination in January 2013. Prior to the examination, the appellant complained of depression, sleeplessness, a withdrawal from others, and a loss of interest in "things." He also complained of nightmares, anger issues, reclusiveness, fatigue, and lack of concentration/memory. On the mental status portion of the examination, the appellant was noted to be casually groomed with fair hygiene. He was cooperative and maintained fair eye contact with the examiner. Although the appellant's affect appeared to be restricted and his thought process "slow," he was alert and oriented to person, place, time, and date. The examiner indicated that the appellant's thinking was coherent with no evidence of loose associations, tangentiality, neologisms, or other signs of thought disorganization. There was some memory impairment and his attention and concentration was adjudged to be below average. His mood was depressed but he denied homicidal/suicidal ideation. Sleeplessness was reported but there were no manifestations of a psychosis or mania. Upon completion of the examination, a GAF score of 49 was given. The examiner further reported that the appellant was experiencing social withdrawal and isolation, memory and concentration difficulties, irritability and anger issues, poor sleep, decreased motivation, and fatigue. Finally, the examiner concluded the appellant was not only suffering from the symptoms and manifestations of PTSD but also from overlapping major depressive disorder manifestations and symptoms. The medical evidence shows assignment of GAF scores of 49 to 65 during the course of the appeal. A GAF score of 61 to 70 contemplates 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. A GAF Score of 51 to 60 contemplates 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). A GAF Score of 41 to 50 contemplates serious systems (e.g., suicidal ideation severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Finally, a GAF Score of 31 to 40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. See DSM-IV at 44-47. A GAF score is highly probative as it relates directly to the appellant'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). In evaluating the appellant's disability, the Board is mindful that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102 (2012), which requires that reasonable doubt be resolved in the appellant's favor, dictates that such signs and symptoms be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181 (1998). In Mittleider, the appellant had been diagnosed with PTSD and various personality disorders and there was no medical evidence in the record separating the effects of the service-connected disability from the nonservice-connected disorders. Id. at 182. The Board finds this case is indistinguishable from Mittleider in that the medical evidence of record does not distinguish the symptoms that have been produced by the appellant's PTSD and any other psychiatric disorder from which he may now suffer therefrom. Accordingly, all psychiatric signs and symptoms will be considered herein. Upon reviewing the record, it is the conclusion of the Board that the evidence supports an evaluation of 70 percent, but no higher, for PTSD. The evidence shows that the appellant has depression, anger-management problems, sleep deprivation, hypervigilance, nightmares, and irritability. The appellant has a very strained relationship with his wife and reports little to no social contact with others. The record further indicates that the appellant suffers at least some, if minimal, memory loss and his spatial awareness has diminished. He also has depression, insomnia, irritability, difficulty concentrating, hypervigilance, exaggerated startle response, intrusive thoughts, restricted/constricted affect, anxiety, auditory hallucinations, and anger outbursts. In addition, a number of GAF scores have been in the 49 to 65 range indicating, at worst, very serious impairment. Although the entire record is not without a measure of ambiguity, the Board concludes that the totality of the evidence in the file appears to be at least in approximate balance. It is the conclusion of the Board that the appellant's overall disability picture indicates that a 70 percent evaluation, but no higher, should be assigned for PTSD from the date in which the appellant submitted his claim. 38 C.F.R. § 4.7 (2012). Hence, to this extent the appellant's claim is granted. The Board notes that the Veteran's representative has requested that a 70 percent schedular rating is warranted. It is concluded, however, that the evidence does not support an evaluation in excess of 70 percent. The Veteran's PTSD is not productive of total occupational and social impairment. The Veteran does not have gross impairment in thought processes or communication. Although he was noted on one occasion to have a circumstantial thought process, the remainder of the evidence shows that he does not have gross impairment in thought process. In addition, no deficits have been noted with respect to the Veteran's speech and communication skills. The Veteran does not suffer from and his behavior is not grossly inappropriate. The Veteran does not report nor is he assessed as being in persistent danger of hurting himself or others. It was noted that he is occasionally verbally abusive to his wife but he did not appear to be at risk for acting out violently or significantly at risk of self-harm. He is able to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran is oriented to time and place. Although the Veteran has some memory impairment, he does not have memory loss for the names of close relatives, previous occupation, or own name. None of the various health care providers who have provided treatment to the Veteran or who have examined him in conjunction with this claim have concluded that he has total occupational and social impairment due to PTSD. Moreover, although the appellant does not socialize, he also reported that he has a relationship, albeit strained, with his wife and immediate family. Accordingly, total social impairment is not shown. Although the medical evidence hints that the Veteran's PTSD may inhibit his ability to obtain and maintain gainful employment, those same records suggest that other disabilities, along with his age and work experience/history, may also be effecting whether the Veteran may work. Additionally, as previously noted, none of the records show that the Veteran is totally socially impaired. Accordingly, the Board concludes that the criteria for a 100 percent rating are not met. The Board has also considered the appellant's lay statements that his PTSD disability is worse than currently evaluated. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this matter, the appellant is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. In other words, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the quantification of his symptoms falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Contrary to the appellant are the reports that have been completed by qualified medical personnel. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be most probative. Additionally, the Board has considered whether it is appropriate to assigned "staged ratings." The Board, however, finds that the medical evidence demonstrates more consistently and throughout the appeal that the appellant meets the criteria for a 70 percent rating from the date of his claim. At no point in time, however, is it shown that there is total occupational and social impairment such that a total rating should be assigned for some distinct period of time. Therefore, the assignment of staged evaluations in this case is not necessary. IV. Extraschedular Evaluation The Board has also considered whether the appellant is entitled to an extraschedular evaluation for his psychiatric disorder. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether an appellant is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a appellant's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the appellant's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the psychiatric disorder is inadequate. A comparison between the level of severity and symptomatology of the appellant's disability with the established criteria found in the rating schedule for mental disorders shows that the rating criteria reasonably describes the appellant's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the appellant does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the appellant has required frequent hospitalizations for his mental disorder. Indeed, it does not appear from the record that he has been hospitalized for this condition during the period of time that is covered by this claim. Additionally, there is not shown to be evidence of marked interference with employment solely due to the appellant's service-connected PTSD. The appellant's psychiatric manifestations and symptoms fit within the criteria for a 70 percent rating. Moreover, the appellant has not worked since retiring from his former job. He has not insinuated that his retirement was solely due to or caused by his service-connected PTSD. There is nothing in the record which suggests that the service-connected disability, solely, has markedly impacted his ability to perform a job. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that this service-connected PTSD on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2012) is not warranted. B. TDIU I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The Board finds that the AOJ has substantially satisfied the duties to notify and assist as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with the issue given the favorable nature of the Board's decision with regard to the issue of entitlement to a TDIU rating. II. Laws and Regulations The appellant has requested a total disability evaluation based on individual unemployability due to his service-connected disabilities. A TDIU may be assigned where the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service member's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). Unemployability associated with advancing age or intercurrent disability may not be considered in determining entitlement to a total compensation rating. 38 C.F.R. § 4.19 (2012). Factors to be considered are the appellant's employment history and his educational and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 32, 332 (1991). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad v. Derwinski, 3 Vet. App. 213, 216 (1992); VAOPGCPREC 75-91 (Dec. 27, 1991). The objective criteria, set forth at 38 C.F.R. § 3.340(a)(2) (2012), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. § 4.16(a) (2012), provide for a TDIU when, due to service-connected disability, a service member is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). In exceptional circumstances, where the appellant does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b) (2012). A TDIU presupposes that the rating for the service-connected condition is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a service member's employability, the Board cannot overlook the level of education he completed, his professional training and employment history. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Employment is that "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2012). Generally, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. Pursuant to 38 C.F.R. § 4.16(b) (2012), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a) (2012), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (2012). In the present case, the appellant does meet the threshold for schedular consideration because the appellant has been assigned a 70 percent evaluation for his psychiatric disorder and his combined evaluation is 70 percent. The record reflects that the appellant has completed four years of high school and has experience working as a plumber. He has no other trade experience and the last time he worked at all was in December 2005 as a plumber. There is no indication from the appellant's claims folder that he has ever received vocational rehabilitation training or any other specialized training. III. Facts and Discussion The appellant's service-connected disabilities and the ratings assigned to those conditions are as follows: PTSD, rated as 70 percent disabling; skin disorder, recurrent dermatitis and scrotal abscess, rated as 10 percent disabling; and residuals fracture of right wrist, rated as noncompensably disabling. The appellant's combined evaluation is 70 percent. The appellant and his accredited representative contend that he is unable to maintain substantially gainful employment as a result of the symptoms and manifestations produced by his service-connected disabilities in general. The appellant admits that for many years he worked at a job that he was quite proficient at and that he enjoyed; however, because his nonservice-connected knee disabilities began to bother him and because the manifestations of his service-connected psychiatric disorder have caused him to become almost reclusive and noncommunicative with others, he retired from his job as a plumber. The appellant's records do add some credence to the statements made by the appellant. Of particular note is the medical examination report of January 2013 prepared by a private clinical psychologist, Doctor G. Hirokawa. Dr. Hirokawa reviewed the appellant's substantial claims file and the miscellaneous psychiatric treatment records that have been prepared from 2006 to the present. The doctor concluded that although the appellant was working for himself, the appellant had enough flexibility in his job that he could minimize the effects of his PTSD. Such minimization included not working with certain people, varying levels and motivation and fatigue, etcetera. Because, however, the medical records showed a dramatic increase in the symptoms produced by the disorder, the doctor felt that the appellant would be precluded in obtaining or maintaining gainful employment. With respect to the miscellaneous treatment records, these records indicate that the appellant has been treated for complaints involving his service-connected psychiatric disorder and other disabilities for which service connection has not been granted. Of note is the fact that the appellant has received very little treatment for his other two service-connected disorders-his main treatment has been for his psychiatric disorder. They show that he has very often sought treatment and his doctors have prescribed a multitude of drugs for control of the symptoms. Yet, these same VA records do not contain an opinion by a health care provider that suggests or insinuates that the appellant's service-connected disabilities are not so disabling that they prevent the appellant from obtaining and maintaining gainful employment. The Court in Van Hoose v. Brown, 4 Vet. App. 361 (1993) held that for an appellant to prevail in a claim for individual unemployability benefits, it is necessary that the record reflect some factor that takes his case outside the norm. See also 38 C.F.R. §§ 4.1, 4.15 (2012). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high schedular rating that is assigned is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the appellant is capable of performing the physical and mental acts required by employment, not whether he can find employment. Moreover, there is no statute or regulation that requires VA to conduct a job market or employability survey to determine whether a claimant is unemployable because of one or more service- connected disabilities. See Gary v. Brown, 7 Vet. App. 229 (1994); see also Beaty v. Brown, 6 Vet. App. 532, 538 (1994). Unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2012). Marginal employment is not to be considered substantially gainful employment. Factors to be considered, however, will include the service member's employment history, educational attainment, and vocational experience. 38 C.F.R. § 4.16 (2012). In determining whether a TDIU is warranted, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case an increased rating must be denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When evaluating the appellant's service-connected disabilities in toto and their effect on his ability to obtain and maintain gainful employment, the Board is mindful that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102 (2012) (which requires that reasonable doubt be resolved in the appellant's favor) dictates that such signs and symptoms be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181 (1998). The Board concludes that the reasoning found in Hodges v. Brown, 5 Vet. App. 375 (1993), applies to this case. Although the medical records are not without some ambiguity, the records do contain at least one very well-written doctor's opinion concerning the appellant's ability to obtain employment. There are no medical opinions of record that contradict or call into question the conclusions made by the private examiner. Hence, although the entire record is not without a measure of ambiguity due to the appellant's other nonservice-connected disabilities and the paucity of documents concerning the appellant's ability to work at a sedentary position where he is isolated from others, the Board concludes that the totality of the evidence in the file appears to be at least in approximate balance. As the Board is unable to conclude that the preponderance of the evidence is against the claim, the claim may not be denied. Therefore, pursuant to 38 C.F.R. § 4.16 (2012), it is the decision of the Board that the appellant's service-connected disabilities render him unable to obtain and maintain gainful employment, and a total disability rating for compensation based on individual unemployability due to his service-connected disorders is warranted. The appellant's claim is granted. ORDER An evaluation of 70 percent, but no higher, for PTSD is granted, from the date of the appellant's claim, subject to the regulations governing the disbursement of monetary benefits. Entitlement to a total disability evaluation based on individual unemployability due to the appellant's service-connected disorders, is granted, subject to regulations governing the payment of monetary benefits. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs