Citation Nr: 1317554 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 10-16 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from August 1942 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The rating decision granted service connection for PTSD and assigned an initial 30 percent evaluation. In a March 2013 rating decision, the RO increased his initial evaluation to 50 percent. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). A review of the Virtual VA paperless claims processing system reveals additional VA treatment records from March 2012 to August 2012. In the March 2013 Supplemental Statement of the Case, the RO specifically stated that these records were reviewed prior to the adjudication of the claims. Therefore there is no prejudice to the Veteran in the Board's adjudication of his claims. In its June 2012 decision and remand, the RO took jurisdiction of the issue of entitlement to TDIU because it was raised during the adjudicatory process of evaluating the Veteran's PTSD. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In June 2012, the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's PTSD causes occupational and social impairment with reduced reliability and productivity. 2. The Veteran's service-connected disabilities do not preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411 (2012). 2. A total rating based on individual unemployability due to the Veteran's service-connected disabilities is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist 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 and 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 Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice was not provided prior to the initial adjudication of the claim or if provided, was inadequate or incomplete, such an error can be "cured" by providing any necessary notice and then readjudicating the claim, including in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. __ (2009). This appeal arises from disagreement with an initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of prejudice with regard to the notice in this case, hence further VCAA notice is not required with regard to the initial rating appeal. VA has satisfied its duty to notify by issuing a pre-adjudication notice letter for the Veteran's PTSD claim in May 2009. This letter advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. It informed him that he needed to show that his PTSD had increased in severity. It also provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. A September 2012 letter provided notice regarding how to substantiate a TDIU claim. His claims were then readjudicated in the March 2013 SSOC. See Mayfield IV; see also Prickett, 20 Vet. App. at 376. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and reports of VA examinations in September 2009, February 2012, and February 2013. The examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The February 2013 examiner also provided a rationale for the opinion regarding employability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). This case was remanded in June 2012 so that additional VA medical records could be obtained, so proper notice could be issued for the Veteran's TDIU claim, so he could undergo VA examinations, and so records from the Social Security Administration (SSA) could be obtained. As noted above, the Veteran's recent VA treatment records were associated with his electronic claims file. He was issued proper notice for his TDIU claim in September 2012. He underwent an adequate VA examination for his PTSD and TDIU claims in February 2013. The RO contacted SSA regarding the Veteran's records and in December 2012 received a negative response stating that the Veteran had not filed for disability benefits. At his February 2013 PTSD examination the Veteran specifically informed the examiner that he received SSA benefits due to retirement, not disability. Thus, the Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeals. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Increased Evaluation Claim Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2011). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed); Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The diagnostic criteria set forth in The American Psychiatric Association: Diagnostic And Statistical Manual Of Mental Disorders, (4th ed. 1994) (DSM- IV) for mental disorders have been adopted by the VA. 38 C.F.R. § 4.125. The Veteran's PTSD is currently rated under Diagnostic Code 9411 as 50 percent disabling. Psychiatric disabilities other than eating disorders are rated pursuant to the criteria for General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned when there is 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. When it is not possible to separate the effects of the service-connected disability from a non service-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102, Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In this case, the Veteran has not been diagnosed with any psychiatric disorder other than PTSD. Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. Under the DSM-IV, GAF scores ranging between 61 and 70 are assigned when there are some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but when the individual is functioning pretty well and has some meaningful interpersonal relationships. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores ranging between 41 and 50 are assigned when there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). It is important to note that a 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 (1996) (citing DSM-IV at 32). Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The Veteran underwent an initial VA PTSD examination in September 2009. He first sought treatment for his PTSD in June 2009, when he began attending a World War II PTSD support group. He denied periods of sustained depression and chronic anxiety, but reported sleep problems, exaggerated startle response, intrusive memories, and nightmares since his service during World War II. He noted a "dramatic" increase in tearfulness and irritability over the previous two years. He reported that his episodes of intrusive thoughts and nightmares were less than weekly. He had limited interest in activities he previously enjoyed and he spent a lot of time alone working in his garden. He had a general sense of social detachment. He was able to speak with people "very easily" but rarely formed close personal relationships. He described his marriage as supportive and he was in daily contact with at least one of his four adult children. At the examination, he was fully oriented and well groomed. His speech and thought content were normal. His affect was restricted and he was occasionally tearful when discussing his stressors. He did not have suicidal or homicidal ideation. His insight and judgment were intact and his ability to pay attention was within normal limits. His memory was intact. The examiner diagnosed the Veteran with PTSD and assigned a GAF score of 69 due to social isolation, irritability, and sleep disturbance. In February 2012, the Veteran underwent a second VA PTSD examination. The examiner noted that the Veteran had "mild" symptoms of insomnia without daytime fatigue, irritability, exaggerated startle response, and decreased activities due to his mood and level of motivation. He also reported intrusive thoughts. The examiner noted that the Veteran's social and occupational functioning had not changed since his previous VA examination and concluded that he had occupational and social impairment due to mild or transient symptoms. At the examination, the Veteran displayed a full range of affect appropriate to the interview content. He had difficulty with uncued verbal recall but the examiner concluded that some of the errors may reflect "long standing styles" of the Veteran. He reported feeling nervous, tense, and jumpy; he stated he had felt this way for years but that it was no worse than at his previous examination. He lived with his wife. His adult children were a source of stress for him because his wife supported them financially against his wishes. However, he described his overall family dynamic as supportive. He reported that several of his friends had died over the previous two years and others were in hospice care. He did not socialize as much because of these losses. He had one friend whom he spoke to daily. He attended Marine Corps reunions and World War II groups. He attended a weekly PTSD support group. He avoided activities that reminded him of his stressors. He stated that he had problems sleeping and that his irritability had worsened since his retirement. The examiner found that the Veteran's PTSD manifested as chronic sleep impairment, mild memory loss, difficulty adapting to stressful circumstances including work and a work like setting, and almost daily tearfulness with strong emotional triggers. The examiner did not find that the Veteran had panic attacks or suicidal ideation. The examiner assigned a GAF score of 65. He found that the Veteran's age-related changes in his nerve and back pain, cognitive processing, and social losses increased his impairment in functioning. In February 2013, the Veteran underwent a third VA PTSD examination. The examiner found that his symptoms were moderate and resulted in moderate functional impairment. Most notably, his social functioning was impaired because his irritability created relationship conflicts. His occupational functioning "[did] not appear to have been historically limited by his mental health symptoms. He reportedly had a long and successful career in the construction industry, and never got into formal trouble or was terminated from a job due to his mental health symptoms." The examiner concluded that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity. At the examination, the Veteran reported nightmares two to three times per month, poor sleep, avoiding crowds, irritability, and intrusive thoughts. He did not like loud noises. He avoided activities and emotions associated with his stressors. He did not trust people and felt protective of himself and his family. He carried a concealed weapon. He reported anxiety, hypervigilance, and an exaggerated startle response. He denied suicidal ideation and stated that he believed in the Catholic faith, which did not allow for self-harm. At the examination his judgment and insight were intact. He did not have impaired impulse control. The examiner found that the Veteran's recent memory lapses were due to normal aging. The Veteran lived with his wife of 59 years and stated that they got along "very well." His adult children "sometimes" irritated him because they overspent and then borrowed money from him. He had a "very close friend" from earlier in life with whom he reconnected since his retirement. They spoke at least once a week. He also had a good friend from his psychotherapy group. Since his retirement, he reported tiring of previously enjoyed activities such as his garden because he experienced a loss of balance and coordination. He stated that he retired at age 62 because work was too hard and he was becoming sensitive to hot and cold weather. He was also worried that his medical conditions would worsen if he did not retire. He stated that recently, his concentration and ability to pay attention to detail had decreased, which made it more difficult for him to be responsible for his family's finances. The examiner concluded that the Veteran's symptoms had worsened since his most recent VA examination. The examiner assigned a GAF score of 54. To address the discrepancies in the Veteran's previous GAF scores, he noted that GAF scores are subjective and that they fluctuated over time. He also noted that the Veteran's report of symptoms would change based on his mood and level of trust or comfort with a health care provider. Further, "...by nature, some providers are more lenient when assigning GAF scores, while others may be more strict, and still others may adhere closely to the scale as printed in the DSM-IV TR." The examiner addressed the opinion from Dr. J. L., a private psychologist who assigned a GAF score of 50 by stating that the report did not contain elaboration regarding the severity or frequency of the Veteran's symptoms. Further, it did not include a discussion of social or occupational functioning "to justify the assigned score." Finally, he noted that Dr. J. L. was not specifically trained to perform disability evaluation examinations. The examiner noted that the February 2012 VA examiner assigned a GAF score of 65. To explain this discrepancy, the examiner stated that the age-related changes in the Veteran's back and nerves, a decrease in cognitive processing, and social losses increased his functional impairment since that time. In addition to his three VA examinations, the Veteran's VA and private medical records show treatment for PTSD. In October 2009, he was evaluated by Dr. J. L., a private psychologist. Dr. J. L. found that the Veteran had depression and anxiety. Further, he had flashbacks that caused panic attacks with dissociation and breaks with reality. He had obsessive thoughts of "horrific images." He avoided reminders of his stressors. He reported sleep disturbance, irritability, hypervigilance, and exaggerated startle response. He did not take medication. At his examination, he was alert and cooperative. His affect was pleasant but he became tearful when discussing his stressors. His thought content and processes were normal. He did not have audiovisual hallucinations or delusions. He reported flashbacks with panic attacks. Dr. J. L. diagnosed PTSD and assigned a GAF score of 50. He noted that the Veteran's PTSD was severe but he functioned successfully as both a worker and a family man. VA treatment records from 2009 to 2010 show that he felt depressed, tense, and jittery. He avoided crowds and activities that reminded him of his stressors. In July 2009 his GAF score was 45. He consistently denied suicidal and homicidal ideation. In 2012, he reported irritability, nightmares, poor sleep, intrusive thoughts, and feeling depressed. He consistently denied suicidal and homicidal ideation and reported the financial dependence of his adult children as a significant source of stress in his life. He reported attending weekly support group meetings and enjoying interacting with other veterans. Reviewing all of the evidence, the Board finds that the Veteran's disability picture most closely approximates the 50 percent evaluation already assigned. The evidence shows that the Veteran's PTSD causes irritability, depression, avoidant behaviors, poor sleep, nightmares, and difficulty with personal relationships. The Veteran consistently denied suicidal ideation throughout the appeal period. Although he reported irritability, no provider found that he experienced periods of unprovoked irritability with impaired impulse control. His judgment and insight were consistently found to be intact. He consistently appeared well groomed and there is no evidence to show that he neglects his personal hygiene. VA examiners noted that the Veteran experiences tearfulness when discussing or recalling his stressors. However, the episodes of tearfulness and depression were not found to interfere with his ability to function independently. There is no evidence of record to show that the Veteran's PTSD prevents him from functioning independently. As discussed above, the Veteran and his wife have been married for 59 years and their relationship is described as supportive. The Veteran reported that they got along "very well." The Veteran has good relationships with his four adult children with the exception that their financial dependence is stressful. He reported having at least two close friends and several more that have passed away or are living in hospice care. This provides clear evidence that he is able to establish and maintain social relationships despite his irritability and feelings of isolation. Therefore, his social and familial relationships are more accurately described by the 50 percent criteria. 38 C.F.R. § 4.130. The Veteran reported occasional lapses in his ability to pay attention or concentrate. The February 2012 and February 2013 VA examiners noted that the Veteran experienced an age-related cognitive decline. The February 2012 VA examiner also attributed mild memory loss to PTSD. This memory loss is more closely described by the 50 percent criteria, which provides for short and long term memory loss. Id. With the exception of Dr. J. L.'s October 2009 statement, examiners have consistently found that the Veteran does not experience panic attacks. Dr. J. L. found that the Veteran's flashbacks caused panic attacks with dissociation and breaks with reality. He did not state the frequency of the panic attacks. However, it is clear from the record that the Veteran does not experience a state of near-continuous panic. Therefore, the Veteran's panic attacks due to flashbacks are more closely described by the 50 percent criteria. Id. The February 2012 VA examiner found that the Veteran had difficulty adapting to stressful circumstances including work and a work like setting because of his sleep impairment, mild memory loss, and irritability. Although this description is more closely approximated by the 70 percent criteria, the majority of the Veteran's symptoms are more closely described by the 50 percent criteria for the reasons discussed above. Id. The Veteran's GAF score was lowest in July 2009 when it was 45. The provider did not elaborate as to why this score was assigned. The provider found that the Veteran was alert, anxious, not depressed, and not suicidal. The Veteran denied ruminations, hallucinations, and memory problems. His concentration was poor. His judgment and insight were "good." In October 2009, Dr. J. L. assigned a GAF score of 50. Both of these GAF scores indicate serious symptoms. In September 2009, a VA examiner assigned a GAF score of 69, in between the assignment of the Veteran's two lowest GAF scores. This score was assigned due to social isolation, irritability, and sleep problems, as noted by the examiner. In December 2012, his GAF score was 65. Both of these scores indicate mild symptoms. Lastly, the February 2013 examiner assigned a GAF score of 54, indicating moderate symptoms. As discussed above, the examiner addressed the inconsistencies in the Veteran's GAF scores and stated that the age-related changes in the Veteran's back and nerves, a decrease in cognitive processing, and social losses increased his functional impairment. For these reasons, the Board finds that the overall disability picture for the Veteran's PTSD does not more closely approximate a 70 percent rating under the applicable Diagnostic Code. 38 C.F.R. § 4.7. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. The Veteran's symptoms from PTSD have not met the criteria for a higher rating at any time since the effective date of his award, so the Board may not stage his rating. Fenderson, 12 Vet. App. at 125-26. Extraschedular Consideration The Board has considered whether referral for an extraschedular rating is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As described above, the manifestations of the Veteran's PTSD are contemplated by the schedular criteria set forth in the General Rating Formula for Mental Disorders. No examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extraschedular consideration is not in order. TDIU To establish entitlement to a TDIU, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither non-service-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). Substantially gainful employment is that which is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the Veteran resides. Moore (Robert) v. Derwinski, 1 Vet. App. 356 (1991). This suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore, 1 Vet. App. at 358. The question is whether the Veteran is capable of performing the physical and mental acts required by employment and not whether the Veteran is, in fact, employed. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other Veteran rated at the same level. Id., (citing 38 C.F.R. §§ 4.1, 4.15). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The Veteran has four service-connected disabilities: PTSD evaluated at 50 percent, tinnitus evaluated at 10 percent, and malaria and bilateral hearing loss each evaluated as noncompensable. His combined disability evaluation is 60 percent for the appeals period. 38 C.F.R. § 4.25. Because he has two or more service-connected disabilities and his combined disability evaluation is not 70 percent or more, the threshold set forth in 38 C.F.R. § 4.16(a) are not met. All cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards of 38 C.F.R. § 4.16(a), are to be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service for consideration of an extraschedular evaluation. 38 C.F.R. § 4.16(b). An extraschedular rating is warranted upon a finding that the Veteran is unable to secure or follow substantially gainful employment. 38 C.F.R. § 4.16(b). The Board must therefore determine whether the Veteran is unemployable due to his service-connected disabilities. The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). An extraschedular rating is requested by the RO and approved by the Under Secretary Benefits or by the Director of Compensation and Pension Services. For the reasons discussed below, a remand for referral to consider an extraschedular evaluation is not warranted. At his September 2009 VA examination, the Veteran reported working in the concrete trade for over 40 years. He denied having his employment terminated for behavioral or performance problems. In his October 2009 report, Dr. J. L. concluded that the Veteran functioned successfully as a worker and a family man despite his severe PTSD because veterans with PTSD "are able to work because of their strength of character and survival characteristics." In February 2013, the Veteran underwent a series of VA examinations to determine the impact of his service-connected disabilities on his ability to work. At his infectious diseases examination, the examiner concluded that his malaria was inactive, asymptomatic, and did not impact his ability to work. At his audiological examination, the examiner found that the Veteran had difficulty "picking up words," so people had to speak to him more loudly. The examiner concluded that his hearing loss and tinnitus did not impact his ability to work. At his general medical examination, the Veteran reported that "mainly," his non-service-connected lumbar spinal stenosis interfered with his ability to work because it prevented him from performing strenuous physical work and he could not sit for very long to do sedentary work. He denied that his non-service-connected carotid stenosis impacted his ability to work, but stated that he was told not to do strenuous activities because it would increase his chances of having a stroke. At his February 2013 PTSD examination, the examiner noted that the Veteran's occupational functioning "does not appear to have been historically limited by [the Veteran's] mental health symptoms." The Veteran reported a long and successful career in the construction industry and stated that he "never got into formal trouble or was terminated from a job due to his mental health symptoms." He stated that work became difficulty for him, so he retired at age 62. He stated that he became sensitive to hot and cold weather. He reported that he got along well with his co-workers until they "issued a point" and then he was not "scared to fight," and eventually his co-workers learned about this aspect of his personality and were all friendly towards him. He denied being disciplined at work for irritability during his career. The examiner concluded that it was less likely that his PTSD rendered him unemployable. Although the Veteran's treating physician stated in December 2012 that he was unable to work, the examiner found that "no supporting information [was] provided in these notes to indicate why this is." The examiner reiterated that during the interview, the Veteran denied problems or loss of work during his career due to psychiatric symptoms. The examiner found the Veteran's statements credible and concluded that his psychiatric symptoms did not cause him to lose his job, and therefore there was no basis to conclude that he was unemployable due to his PTSD. The examiner stated that the Veteran's physical limitations prevented him from working. As noted above, these limitations such as spinal stenosis and carotid stenosis are not service-connected. The Board finds that the evidence discussed above outweighs the statement of the December 2012 VA treating provider who concluded that the Veteran is "unable to function in an normal competitive working environment, he isolates, is irritable, avoids people. He is unable to sustain gainful employment." As noted above, the Veteran reported displaying irritability at work. However, he also stated that he got along well with his co-workers most of the time. Further, the February 2013 examiner found the Veteran's credible reports of not losing his job due to his symptoms such as irritability invalidated the December 2012 provider's conclusion. As the preponderance of the evidence is against a finding that the Veteran is unable to secure and maintain substantially gainful employment solely as the result of his service-connected disability, the Board finds that referral for consideration of an extraschedular TDIU is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER An initial disability evaluation in excess of 50 percent for PTSD is denied. A TDIU is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs