Citation Nr: 1315465 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 10-43 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating based on unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from February 1976 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which granted service connection for PTSD and assigned a 10 percent evaluation. The Veteran disagreed with the effective date of the grant of service connection, as well as the initial evaluation. Subsequently, the RO found clear and unmistakable error in the assignment of the effective date, and issued an August 2010 rating decision granting an earlier effective date, that of July 2005, which was the date of the Veteran's original claim. The Veteran then perfected his appeal with respect to the initial evaluation. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the U. S. Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. Here, the Veteran has specifically alleged that his PTSD renders him unemployable, and has submitted medical evidence addressing this issue. In light of the Court's holding in Rice, the Board considers the TDIU claim as part of the pending increased rating claim and has accordingly listed the raised TDIU claim as an issue on the title page of this decision. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. Throughout the course of the appeal, the Veteran's PTSD is manifested by occupational and social impairment with deficiencies in most areas due to such symptoms as sleep disturbance, suicidal thoughts, intrusive thoughts, depression, difficulty concentrating, anxiety, persistent avoidance, depression, paranoia, increased arousal, impulsivity, and social isolation. 2. The Veteran is in receipt of service connection for PTSD, evaluated as 70 percent disabling; a lumbar spine disability, evaluated as 20 percent disabling; a right ankle disability, evaluated as 20 percent disabling; and right knee degenerative joint disease, evaluated as 10 percent disabling. His combined evaluation for compensation is 80 percent. 3. The Veteran is rendered unemployable as the result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 70 percent, but no higher, for PTSD have been met for the entire period on appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130; Diagnostic Code 9411 (2012). 2. The criteria for entitlement to a total disability rating based on unemployability due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 and 3.326(a) (2012). As the Board has determined that a TDIU is warranted, no further discussion of the VCAA is necessary as it pertains to this claim. 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) (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 RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in October 2005, prior to initial adjudication of the Veteran's claim, discussed the evidence necessary to support his claim. The evidence of record was discussed, and the Veteran was told how VA would assist him in obtaining additional relevant evidence. A preadjudicatory letter in March 2006 discussed the manner in which VA determines disability ratings and effective dates. In January 2009 the Veteran was asked for additional information concerning his PTSD claim. A July 2010 letter advised the Veteran of the status of his claim. The Board concludes that the content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. The Board notes that this is a case in which the Veteran has challenged the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims 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, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. With respect to VA's duty to assist, VA and private records have been obtained and associated with the record. The Veteran has been afforded VA examinations and the Board finds that they were adequate in that they were performed by neutral, skilled providers who reviewed the file and offered sufficient rationale for their conclusions. The record also contains extensive reports from the Veteran's VA treating psychiatrist. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claims. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Factual Background VA treatment records reflect that in January 2005, the Veteran was seen as a referral from primary care. He reported that prior to moving to Colorado in the late 1990s, he worked as a tattoo artist. He noted that he continued with that work for a few years after relocating to Colorado, then worked as a crane operator until approximately 2000, when he became physically unable to do the work. The assessment was depression. In March 2005, the Veteran was seen for mental health intake and assessment. He denied previous mental health treatment. He endorsed suicidal ideation and thoughts of harming others, but expressed no intent to act. He indicated that he had good relationships with two of his sisters and with his daughter. He noted that he had been married for 20 years. He reported that he had been unemployed for the previous year, and that he had worked as a tattoo artist and a heavy equipment operator. On mental status examination, the Veteran was lethargic but oriented. His grooming was appropriate. Speech was of normal rate and rhythm, and language skills were intact. The Veteran's affect was blunted, restricted, and constricted. His mood was dysphoric and depressed. There were no perceptual disturbances, and the Veteran's thought processes were normal. His insight was limited, and his judgment was noted to be impulsive. Memory was intact. The diagnosis was recurrent major depression. The provider assigned a Global Assessment of Functioning (GAF) score of 50. In April 2005 this same provider diagnosed PTSD. In May 2005, the VA provider noted anxiety, sleep disturbance, and suicidal ideation. She assigned a GAF score of 45. An April 2006 VA medication management record by R.G., M.D. indicates the Veteran's report of hyper vigilance and hyper arousal. He noted that he continued to have sleep disturbance. His affect was blunted and restricted in range. He indicated that his mood was terrible. Dr. G. assigned a GAF score of 46. In June 2006, the Veteran reported to Dr. G. that he remained depressed and anxious. He stated that he became aggravated easily and went into rages and threw things. He indicated that he felt on the edge of panic he could not control. He indicated that he was not sleeping well. He noted that he avoided people and isolated himself. He stated that intrusive memories and nightmares persisted. Dr. G. assigned a GAF score of 44. In August 2006, Dr. G. noted that the Veteran reported symptoms indicative of persistent avoidance of stimuli and of increased arousal. He indicated that he remained in fear of losing control whenever he was around people. The Veteran noted that sleep was better with medication. Dr. G. assigned a GAF score of 46. In September 2006, the Veteran reported that he continued to be quite depressed and anxious. The provider assigned a GAF score of 45. In March 2007, Dr. G. noted recurrent and intrusive distressing memories, recurring and intrusive distressing dreams, and intense psychological distress from cues of the Veteran's stressors. He also noted avoidance of thoughts and feelings, places or people; markedly diminished interest in significant activities; and feelings of detachment or estrangement from others. The Veteran endorsed difficulty falling or staying sleep, irritability or outbursts of anger, difficulty concentrating, hyper vigilance, and exaggerated startle response. He indicated that his anger was explosive but was usually verbal. He related that his current medications seemed to take the edge off of his anxiety and depression, but that his anger and lability persisted. Dr. G. assigned a GAF Score of 43. In April 2007, the Veteran reported that his sleep varied, but was usually interrupted. He endorsed nightmares. His affect was irritable and mood was reportedly down. He endorsed suicidal ideation without intent or plan. No psychoses were detected. Dr. G. assigned a GAF score of 47. In April 2009, Dr. G. noted that the Veteran's affect was anxious and tearful. The Veteran denied suicidal ideation. He noted that he easily angered at home, breaking things and yelling. Dr. G. assigned a GAF score of 45. On VA examination in April 2009, the Veteran reported that he saw Dr. G. for medication management on a monthly basis but that he had not received one-on-one counseling on a routine basis in many months. He indicated that he lived with his second wife of 27 years, and that he had a step daughter with whom he was close. He stated that he was currently unemployed and that he last worked in April 2004 as a heavy equipment operator. He noted that he also drove a truck and operated a crane for many years, primarily through a union. He also indicated that he had his own tattoo business for a while but had to quit due to arthritic problems with his hands. He related that his sleep had not been restful in many years, with dreams of stressful events. He indicated that he tended to lose his temper easily, but denied ever having left work due to outbursts or anxiety. He stated that he avoided crowded, busy areas and avoided being in vulnerable situations. He endorsed easy tearfulness, as well as low energy, interest, and motivation levels. He endorsed suicidal ideation but indicated that he had never attempted or planned to hurt himself. On mental status examination, the Veteran was generally depressed with a tearful affect. Memory and concentration levels were good. The examiner concluded that the Veteran's symptoms were mild, but were consistent with PTSD. She noted that the Veteran also had some symptoms of depression, more likely than not secondary to his physical deterioration and difficulties finding work due to those physical limitations. She indicated that the Veteran was able to maintain activities of daily living, including his own personal hygiene. She noted that the Veteran's thought processes and communication were not significantly impaired, but that his social functioning was mildly impaired by some avoidance behaviors and anxiety. She concluded that the Veteran was employable from a psychiatric standpoint without limitation. The diagnosis was PTSD, and the examiner assigned a GAF score of 58. In May 2009, Dr. G. noted that the Veteran had some depression associated with his brother's death. He indicated that the Veteran's symptoms were the same, in that he was avoidant and hyper vigilant. He assigned a GAF score of 45. In August 2009, the Veteran reported to Dr. G. that since service, his employment had been in jobs that involved working by himself because he could not tolerate working around others due to anger and irritability. He stated that more recently, he had avoided people whenever he could. He endorsed feeling paranoid often, and that he had problems with anger, hyper vigilance, and insomnia. Dr. G. assigned a GAF score of 45. In September 2009, the Veteran reported that he found it very difficult to be optimistic about the future and described a sense of shortened future without emotional attachment. He noted that he had become emotionally restricted. He also endorsed recurrent intrusive distressing recollections about events during service. In October 2009, the Veteran was noted to be anxious, agitated, and depressed. He was oriented. He evidenced no hallucinations, delusions, or illusions. There was no looseness of association or racing thoughts, and no flight of ideas or tangentiality. The Veteran did not appear paranoid, obsessive, or compulsive. The Veteran reported an increase in agitation and hyper vigilance. He endorsed difficulty getting and staying asleep. He noted that he feared even trying to go to sleep due to the unpredictable nature of his dreams. He indicated that he was overly cautious, often double and triple checking things. He stated that he had feelings of vulnerability and had a very real fear of the unknown, sensing pending doom and disaster. He noted that his family accused him of being over controlling and overly protective. He requested information concerning the inpatient PTSD program. An October 2009 record by Dr. G. indicates that the Veteran's wife accompanied him to his medication management appointment. She stated that the Veteran's symptoms, especially the anger and hyper vigilance, had become worse in recent months. She described a road rage incident and indicated that she was afraid because of his level of uncontrolled anger. She also described the Veteran's nightmares, during which he thrashed around and punched the bed. The Veteran denied suicidal ideation but was noted to have little hope for the future. Dr. G. noted that the Veteran's affect was more tense and that he was near tears. He assigned a GAF score of 43. A subsequent October 2009 VA individual psychotherapy note indicates that the Veteran was very anxious and somewhat depressed. He was oriented, and there were no perceptual disturbances. Thought content was normal. In November 2009, Dr. G. noted that sleep had become more of a problem. The Veteran reported that he got three hours of sleep on a "good" night. He denied suicidal ideation. His affect was anxious and angry. In February 2010, a VA social worker noted that the Veteran continued to have significant difficulty with PTSD symptoms. The Veteran was very tearful and discussed how he had isolated himself from others. In March 2010, a VA provider noted that the Veteran continued to have varying degrees of difficulty with the symptoms of his PTSD. The Veteran reported slight improvement in his depression. He noted that he continued to isolate himself. He reported an overwhelming feeling of anxiety, describing the feeling as if his mind was constantly on guard and could not be turned off from being on alert. He indicated that he remained very vigilant and felt exhausted most of the time. He noted a sense of physical and emotional arousal that did not stop. He reported periods of pounding heart, digestive discomfort, nausea, and a periodic sensation of suffocating. He endorsed emotional fatigue with marked irritation, moodiness, exaggerated emotional response, loss of confidence, and loss of ability to concentrate. He also endorsed short term memory loss. He noted that he felt overwhelmed to the point of not being able to make a decision, which served to increase the anger directed at himself. The provider assigned a GAF score of 43. In April 2010, Dr. G. noted the Veteran's report that his PTSD symptoms were very active. He endorsed problematic sleep despite medication, and indicated that he continued to have occasional nightmares. He indicated that he had occasional suicidal ideation, but denied intent or plan. There was no psychosis. Dr. G. assigned a GAF Score of 45. In May 2010, the Veteran stated that he had cycled into a period where his sleep was much more difficult. He also endorsed depression and irritability. Dr. G. recalled that the Veteran was laid off from a job as a heavy equipment operator in 2003 and noted that at that time, the Veteran had been experiencing worsening depression and had feared that he might hurt someone due to poor concentration. Dr. G. assigned a GAF score of 45. In a May 2010 statement, Dr. G. indicated that he had treated the Veteran for severe PTSD since August 2005. He indicated his belief that PTSD kept the Veteran from working. He noted that when he first saw the Veteran in August 2005 he had been off work for some time due to the severity of his PTSD as well as significant back and neurological problems. He related that during his last job, the Veteran was working as a crane operator and had gotten to the point where he could not concentrate, was constantly anxious and sleep deprived, and was concerned that someone would get hurt. He noted that the Veteran displayed isolative behaviors in the workplace and at home, finding it difficult to be around even his wife. He indicated that the Veteran reported rage incidents. He noted that the Veteran dealt with significant levels of depression. He indicated that despite aggressive treatment for PTSD and depression, the Veteran's symptoms remained severe. He stated that he had reviewed the schedular criteria for mental disorders, and that in his opinion, the Veteran's PTSD had resulted in occupational and social impairment with deficiencies in most areas. He pointed out that the Veteran was highly avoidant, making every effort to minimize contact with people, and that he did at times have problems maintaining minimum hygiene or personal appearance. He noted that the Veteran had frequent suicidal ideation and impaired impulse control, in addition to continuous panic or depression that clearly affected his ability to participate in a family setting or to work. He opined that the Veteran had been unable to obtain or maintain substantially gainful employment due to the severity of his PTSD and other service-connected disabilities since April 2003. A June 2010 VA individual psychotherapy record indicates that the Veteran's mood was anxious and depressed. He was oriented. Thought process was within normal limits. The provider noted that the Veteran continued to have nightmares. The Veteran reported that he experienced hyper vigilance, irritability, and avoidance. He noted that he avoided social activities that involved groups, including familiar participants such as family. He endorsed difficulty in crowds, and noted that he was constantly on guard. The provider noted that the Veteran requested that the office door be left open during his therapy sessions. In July 2010, the Veteran reported avoidance symptoms, emotional numbing, arousal symptoms and difficulty with concentration and memory. He noted that he had an exaggerated startle response triggered by loud sounds and sudden movement. Insight and judgment were noted to be average. The Veteran was afforded an additional VA examination in July 2010. He reported that he remained relatively isolated, and that he had no hobbies. He indicated that he was easily frustrated and avoided leaving the house. On mental status examination, the examiner noted that some cognitive impairment was present, but that the previous examination in 2009 had revealed none. The Veteran was casually dressed and slightly unkempt. His affect was subdued and his speech was constricted and blunt. His thought process was relatively linear. He described sleep as poor, stating that he woke a lot and had difficulty remaining asleep. He described his activity level as low. The examiner noted that the Veteran's cognitive ability appeared to be low average. There was no indication of psychosis and no reported auditory or visual hallucinations. The Veteran endorsed depressed mood nearly every day, with diminished interest in activities. He also endorsed fatigue, low self-esteem, difficulty with concentration, and passive thoughts of self harm. He endorsed hyper startle and hyper vigilance, dissociative behavior, anger, irritability, and numbing. With respect to any change in symptoms over the previous year, the Veteran noted an increase in depressive symptoms, related primarily to the decline in his physical health. The examiner noted that the Veteran did not report changes in his PTSD symptoms, and that they had remained primarily stable over the previous several years with treatment. She indicated that the Veteran's physical health symptoms were primarily debilitating for employability purposes. She concluded that his mental health symptoms did not prevent employment opportunities for the Veteran, noting that he was able to work even with those symptoms until 2003, when he quit due to his physical health. She noted that the prominent symptoms for the Veteran were depressive symptoms related to his declining physical health and financial stressors. She related her belief that he could work in a supported environment. She concluded that the Veteran's PTSD symptoms were transient or mild with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. She assigned a GAF score of 58, indicating that it indicated moderate symptoms. In October 2010, Dr. G. noted that he had documented that PTSD was active at the time the Veteran had left his most recent employment. He noted that the Veteran's anger, hyper vigilance, and hyper arousal were increased, and that he reported that he avoided people more than ever. Dr. G. noted that emotional numbing was prominent. The Veteran denied active current suicidal ideation, but indicated that he had recently experienced it, with no intent or plan. He endorsed sleep problems and nightmares. In November 2012, the Veteran submitted a statement indicating that he had last worked as an equipment operator in 2003, and that prior to that, he worked primarily as a crane operator. He noted that when he worked, he had difficulty dealing with others, had authority problems, and had trouble with supervisors. He also noted that he experienced difficulty concentrating and had problems tolerating the stress of work. He stated that he stopped working in April 2003 due to a combination of his PTSD symptoms and his service-connected ankle, knee, and back disabilities. He indicated that since that time, he had continued to struggle with severe PTSD symptoms. He noted that he rarely left the house except to attend therapy. He indicated that he had no interests or hobbies. He asserted that he had not been able to work since 2003 due to physical pain from his service-connected disabilities and his PTSD symptoms. In December 2012, Dr. G., the Veteran's treating VA psychiatrist, submitted a report summarizing his diagnosis and treatment of the Veteran. He noted that the Veteran's symptoms included intrusive images, nightmares, avoidance, hyper vigilance and hyper arousal, irritability and anger. He indicated that the symptoms had caused problems in social and occupational functioning. Dr. G. stated that despite aggressive treatment, the Veteran's PTSD remained the predominant barrier to his being in the workforce and to functioning in the psychosocial arena. He acknowledged that the Veteran's depression had been more amenable to therapy and was currently in reasonable control. He stated that it was possible for an experienced practitioner to separate out the symptoms of the Veteran's PTSD from his depression, and that his presentation was classic for comorbid disorders. He noted that he had treated the PTSD and depression as separate disorders. He opined, based on his multiple contacts with the Veteran, that his PTSD had resulted in occupational and social impairment with deficiencies in most areas since at least July 2005. He based such opinion on the Veteran's presentation in his office, which had always been consistent. He noted that the Veteran was an isolative man who avoided public settings because of his intense hyper vigilance that borders almost always on paranoia. He indicated that the Veteran could not trust others and always felt that others presented a threat to him. He stated that the Veteran was easily enraged and feared verbal or physical outbursts, which led to reclusive behavior and a tendency to neglect his personal appearance. He noted that the Veteran was chronically anxious, which interfered with maintaining social relationships and would likewise interfere with his ability to perform work in any setting. He emphasized that the Veteran's depression was a separate condition that in some ways fed off the isolative existence and led to chronic suicidal thinking. He acknowledged that both were impairing, but that they were separate conditions. He also stated that the Veteran's other service-connected conditions did impact his ability to sustain gainful employment, and that while he was clearly aware of the Veteran's medical comorbidities, it was his opinion that the Veteran's PTSD alone had rendered him unable to maintain gainful employment since July 2005. He pointed out that the combination of PTSD, comorbid depression, and his medical service-connected disabilities substantially supported his opinion. Analysis Evaluation of PTSD Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155. A proper rating of the Veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether staged ratings are warranted. It has determined that the Veteran's PTSD has not significantly changed, and that a uniform rating is for application. Under the rating criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012), a 100 percent evaluation is provided for PTSD where there is 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. A 70 percent evaluation is provided where there is 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 or hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 50 percent evaluation is appropriate where there is 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 30 percent disability rating is appropriate where the evidence shows that PTSD is productive of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (i.e., forgetting names, directions, and recent events), warrants a 30 percent disability evaluation. A 10 percent evaluation is warranted where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. In evaluating psychiatric disorders, it must be shown that industrial impairment is the result of actual manifestations of the service-connected psychiatric disorder. The severity of a psychiatric disability is based upon actual symptomatology, as it affects social and industrial adaptability. Two of the most important determinants of disability are time lost from gainful employment and decrease in work efficiency. 38 C.F.R. § 4.130 (2012). In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet.App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is defined as indicating 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). See Carpenter v. Brown, 8 Vet. App. 240, 242-244 (1995). Upon careful consideration of the evidence pertaining to this claim the Board has determined that for the entire appellate period, an evaluation of 70 percent is warranted for the Veteran's PTSD. The Secretary, acting within his authority to "adopt and apply a schedule of ratings," chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under-or over-inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet.App. 128 (1997). The Board acknowledges that evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (1992). In this case, the Board observes that the Veteran's reported symptoms include sleep disturbance marked by recurring nightmares; recurrent intrusive thoughts; chronic depression; irritability; chronic hyper arousal; intense distress in response to exposure to internal and external cues that symbolize or resemble an aspect of the traumatic event; avoidance of activities, people, and places that arouse recollection of trauma; impairment of concentration; suicidal ideation; restricted affect; and irritability and outbursts of anger. Moreover, the Board accepts that the Veteran's PTSD impacts his interpersonal relationships and his employment. Objectively, there is evidence of restricted affect, mood disturbance, limited insight, impulsive judgment, impaired social functioning, some cognitive impairment, and constricted speech. In essence, the evidence reflects symptoms that are best contemplated by the criteria for a 70 percent evaluation in that the Veteran experiences deficiencies in most areas due to those symptoms. The Board has also determined that an evaluation in excess of 70 percent is not warranted for any portion of the appellate period. While the Board accepts that the Veteran's PTSD has significant effects on his functioning, the lay and medical evidence of record does not demonstrate both total occupational and social impairment. The evidence also does not demonstrate obsessional rituals; intermittently illogical, obscure, or irrelevant speech; spatial disorientation; neglect of personal appearance or hygiene; an inability to establish and maintain effective relationships; or other symptoms on a par with the level of severity exemplified in these manifestations. Rather, the Veteran has repeatedly been found to be oriented, and while he has endorsed suicidal ideation and thoughts of harming others, he has denied any plan with respect to those thoughts. The Veteran's treating VA psychiatrist, whom he sees on a regular basis, has provided in-depth statements regarding the Veteran's symptoms, and indicates that the Veteran has occupational and social impairment with deficiencies in most areas. There is nothing in the record that supports a finding that the Veteran has symptoms whose severity cause total occupational and social impairment. There is no gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of self-harm or harming others, or inability to maintain minimal personal hygiene. As such, the Board finds that the record as a whole does not support the existence of symptoms such that there is impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood to support an evaluation in excess of 70 percent for PTSD. In summary, the overall disability picture does not more nearly approximate the criteria for a schedular evaluation of 100 percent. As such, the Board concludes that a 70 percent evaluation for the Veteran's PTSD for the entire period on appeal is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Extraschedular Consideration The Board has also considered whether the Veteran's PTSD presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 Veteran'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 Veteran'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 evaluations for the service-connected disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's service-connected PTSD with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. In particular, the Veteran's symptoms as described in detail above are specifically contemplated by the rating criteria. Consequently, the Board has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. TDIU It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). "Substantially gainful employment" is that employment "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 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). The Court noted the following standard announced by the United States Court of Appeals for the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the Veteran need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the Veteran. In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2012). In this case, the Board finds that the criteria for a TDIU have been met. As noted above, the Veteran is in receipt of service connection for PTSD, evaluated as 70 percent disabling; a lumbar spine disability, evaluated as 20 percent disabling; a right ankle disability, evaluated as 20 percent disabling; and right knee degenerative joint disease, evaluated as 10 percent disabling. His combined evaluation for compensation is 80 percent. The Board acknowledges that there are medical statements in the record indicating less severe PTSD symptoms, and suggesting that the Veteran left his most recent employment as the result of physical disability, rather than psychiatric disability. However, the numerous records and statements from Dr. G., the Veteran's treating VA psychiatrist, point to unemployability based on the Veteran's service-connected PTSD. Dr. G. has provided a discussion of his findings, a rationale for his conclusions, and has clearly not misstated any relevant fact. Because Dr. G. has treated the Veteran on a regular basis for several years, and his statements clearly indicate that he is aware of the conflicting findings of the VA examiners, the Board places significant probative weight on his statements. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because, at the very least, a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown , 5 Vet. App. 413, 421 (1993). As such, the Board finds that entitlement to a TDIU is warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial evaluation of 70 percent for PTSD is granted, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to a TDIU is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs