Citation Nr: 1320796 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 06-01 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with major depressive disorder. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to January 11, 2012. REPRESENTATION Appellant represented by: Joseph R. Moore, Esq. ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from September 1966 to August 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2005 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In a September 2009 decision, the Board denied an increased disability rating for PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In July 2010, the Court granted a Joint Motion for Remand (Joint Motion). In the July 2010 Order, the Court remanded the portion of the Board's September 2009 decision which denied an increased rating for PTSD for compliance with instructions provided in the Joint Motion. Subsequently, the Board remanded the increased rating claim, along with the issue of entitlement to a TDIU, in June 2011. As discussed below, the development requested has been completed, and the claim is now appropriate for appellate review. The Board has characterized the issue of entitlement to a TDIU as it appears on the first page of this decision in light of the grant of a 100 percent schedular disability rating for prostate cancer effective from January 11, 2012. See Green v West, 11 Vet. App. 472, 276 (1998) (holding that, if a 100 percent schedular rating is granted, a veteran is not also entitled to TDIU for the same period). Thus, the issue of entitlement to a TDIU from January 11, 2012, forward, was rendered moot by the grant of a 100 percent disability rating for prostate cancer, and that period is not before the Board for consideration. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. For the entire rating period on appeal, the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas due to such symptoms as: impaired impulse control, depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, suicidal ideation, difficulty in adapting to stressful circumstances, impaired judgment, alcohol dependency, and inability to establish and maintain effective relationships. 2. The Veteran is not rendered unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities prior to January 11, 2012. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for a 70 percent disability rating for PTSD have been met for the entire rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for a TDIU have not been met for any period prior to January 11, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS PTSD Disability Rating Analysis Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations for PTSD are assigned pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the general formula for rating mental disorders, a 50 percent rating is assigned where 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. 38 C.F.R. § 4.130. A rating of 70 percent is assigned 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 and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 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. Id. 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 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score in the range of 31 to 40 represents "Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, 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). Id. A GAF score in the range of 41 to 50 represents "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A GAF score in the range of 51-60 indicates "Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). 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. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran in this case is in receipt of a 50 percent disability rating for his service-connected PTSD for the entire rating period on appeal. He, including through his attorney, contends that that his PTSD symptoms are so severe that they render him unable to work, and that, thus, his PTSD warrants an increased disability rating in excess of 50 percent. After reviewing all the lay and medical evidence of record, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a higher evaluation of 70 percent, but no higher, have been more nearly approximated for the entire rating period on appeal. Throughout the rating period on appeal, the evidence shows that the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas due to symptoms including (for example only) impaired impulse control, social isolation, occasional suicidal ideation, irritability, depressed mood, anxiety, disturbances of motivation and mood, chronic sleep impairment, and inability to establish and maintain effective relationships, which more nearly approximates the criteria for a 70 percent rating under Diagnostic Code 9411. 38 C.F.R. § 4.130. For example, reviewing the evidence relevant to the rating period on appeal, VA clinical records from June and September 2004 include the Veteran's report that, on many Friday nights, he went with his wife to a club where he had between 1 and 12 beers, and that he did not intend to stop his use of alcohol. The Veteran was afforded a VA examination in October 2004. He reported rage and withdrawal as new symptoms. He stated that his relationship with his wife was the one good thing in his life. Over the past few months, he said he had fewer social contacts and did not go to his VFW post as frequently as he did in the past. Approximately nine months prior, the Veteran stated that he became very sensitive to kidding and insults that were given at the VFW, and several months prior, he cut off all contact with his peers there. He reported drinking approximately a six pack of beer per week. He also stated that his anger had increased, with several occasions during which he scared his wife. Within the last several months, he attacked his neighbor's front door with a one by one piece of wood when the neighbor's dogs were barking. The Veteran stated that he wanted to kill the dogs. He also physically attacked a pole in his yard with an axe handle when a friend of his angered him during a telephone call. The Veteran's wife hid his shotgun, as she found it loaded next to the Veteran on the front porch one morning while he was asleep; he had no recollection of why he had it out. Due to his wife's physical condition, he had to take on most of the household chores. That, in addition to his lack of employment, had increased his stress. The October 2004 VA examiner observed that the Veteran was preoccupied with the wrongs his VFW associates had inflicted upon him and appeared angry and animated when discussing them. His mood was mildly dysphoric, but his affect was broad and mildly expansive. The Veteran seemed reluctant to acknowledge that there were things that could control his behavior. However, he did state he felt severe detachment from others and difficulty establishing close feelings. These problems were apparently severe at times, as they had affected his joining VFW in the past and appeared to contribute to his current difficulties. The Veteran reported getting no more than four hours of sleep at a time, as well as an exaggerated startle response. He stated he was angry all the time with verbal outbursts. The VA examiner assessed a GAF score of 37. In sum, the October 2004 VA examination report reveals the presence of symptoms and a level of occupational and social functioning that support a higher, 70 percent, disability rating for PTSD. In particular, the report shows the presence of impaired impulse control, including unprovoked irritability with episodes of violence, as well as inability to establish and maintain effective relationships, as demonstrated by the Veteran's cutting off contact with his friends at VFW. Further, the VA examiner assigned a GAF score of 37, which reflects "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, 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)." DSM-IV at 47. In this case, the Veteran avoided his friends at the VFW, became so angry that he scared his wife on occasion, and mood was consistently depressed or angry. Thus, the GAF score of 37, as well as the symptoms described by the Veteran at the October 2004 VA examination, reflect a level occupational and social impairment more nearly approximated by the criteria for a 70 percent disability rating - deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to PTSD symptoms. 38 C.F.R. § 4.130. VA treatment records from February 2005 indicate that the Veteran enjoyed spending his free time reading and "honky-tonking" with his wife on the weekends. A June 2005 clinical record noted the Veteran's denial of loss of interest in usually pleasurable things or feelings of sadness or hopelessness. He also reported having a wonderful time at a recent celebration. Thus, the VA treatment records from February and June 2005 do not support a level of social and occupational functioning more severe than that reflected by the current 50 percent rating, in that they demonstrate that the Veteran was able to maintain relationships with both his wife and friends, providing evidence against this claim. The June 2005 VA examination report describes ongoing depression as well as "self-medication" via alcohol. The Veteran reported a good marital relationship, but stated that he drank anywhere from one to two beers to many more on weekends. He stated that he experienced sleep disturbance in the form of nightmares unless he drank beer. Specifically, he had to drink between 8 and 10 beers in order to get a good night's sleep. The June 2005 VA examination report demonstrates ongoing irritability and impaired impulse control. The Veteran cussed the VA examiner out because he had to wait for two-and-a-half hours for his appointment. He eventually defused his anger, calmed down, and became joking. Many of his answers were coupled with nervous, loud laughing. The VA examiner observed that the Veteran sometimes appeared to be depressed for a few seconds, but quite often he was talking loudly and exhibited a nervous type of laughing. The VA examiner assigned a GAF score between 55 and 60, reflecting "[m]oderate 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)." DSM-IV at 47. This GAF score reflects symptoms commensurate or less severe than those described by the Veteran at the June 2005 VA examination, in that the Veteran did not report having any friends, and his level of social functioning appears to be more severely affected by his PTSD symptoms (in particular, his anger and irritability and alcohol dependency), than is reflected by the assigned GAF score. However, the VA examiner did not believe that the Veteran's overall disability was more severe than currently rated, and stated it was possibly even less severe, as there was no cognitive problem with regard to the Veteran, providing evidence against the claim for an increased rating. In December 2005, VA treatment notes indicate that some teenagers who lived in the Veteran's neighborhood broke into his house and robbed him. He telephoned the VA Medical Center asking to speak to a psychiatrist. He went from angry to laughing, and stated repeatedly that he needed to be talked out of killing the people who broke into his house, as he felt he needed retribution. As he was actively homicidal, the physician who spoke with him on the phone called an ambulance to the scene. The December 2005 VA treatment notes reflect several symptoms in higher disability rating categories, including impaired impulse control and danger of hurting self or others (although not persistent, as the Veteran apparently eventually calmed down). The Veteran was afforded another VA examination in June 2006. He stated that he was still angry about the teenagers breaking into his home, and expressed a non-criminal, vaguely identified means of punishing them, although he denied any intent or plan to harm them physically. He stated that he had been sleeping 3 or 4 hours per night if he drank several beers, and admitted to concealing use of hard liquor from his doctors. He also reported drinking a Bloody Mary cocktail every weekday morning, and a case of beer over the weekend. He said he avoided veterans groups due to potential conflict, and also avoided crowds, movies, or standing in line. He reported having a lot of acquaintances, but no friends. He reported losing his temper if the issue was important to him, and occasionally felt on edge and anxious for no reason. He had quit some of his previous jobs in order to avoid potential conflict with coworkers, and generally avoided interaction with coworkers when he was employed. In this regard, it must be note by the Board that, by the Veteran's own statements, clearly his alcohol consumption did not help his employment. The June 2006 VA examiner observed that the Veteran laughed nervously whenever he expressed hostility or anger, and was tense and fidgety. He reported homicidal thoughts toward the teenagers who broke into his house. He had a history of poor judgment related to thrill-seeking behavior. His speech was marked by frequent cursing and expletives. He spoke in a clipped, concise fashion with slightly pressured rate and slightly angry tone. He provided a significant history of impaired impulse control related to his thrill-seeking behavior. The VA examiner stated that his problems with low frustration tolerance, anxiety, irritability, and anger were causing significant social and occupational impairment. A GAF score between 55 and 60 was assigned. The June 2006 VA examination report highlights the Veteran's impaired impulse control, a criterion in the next higher, 70 percent, rating category. Although the Veteran laughed when expressing feelings of anger, it is apparent from the report that he had difficulty controlling his anger. Indeed, the VA examiner opined that his anger and irritability resulted in significant social and occupational impairment, thus supporting a disability rating in excess of 50 percent. The Veteran was afforded another VA examination in August 2007. He stated that he isolated from others and did not want to be around anyone. He reported angry disputes with others. The VA examiner observed that the Veteran laughed often during the interview, but was obviously cynical and angry. He indicated obsessional ideas, as well as paranoia and hypervigilance. He further felt that his drug and alcohol consumption had been representative of suicidal ideation. The VA examiner noted that he indicated antagonism for virtually everyone. Indeed, the examiner opined that the Veteran's social functioning was driven by his polysubstance dependency (which has since been related to his PTSD by both private and VA physicians), his antisocial personality, and, to a degree, by his PTSD symptoms. Further, the VA examiner stated that the Veteran's main problem stemmed from his anger, mood instability, antisocial attitude, and history of antisocial and criminal behavior for 20 years. The VA examiner assigned a GAF score of 55, which, again, for the same reasons outlined above, reflects a level of social and occupational impairment commensurate with or less severe than that reported during the interview and examination. Thus, the August 2007 VA examination report confirms the prior reports of impaired impulse control being a primary factor in the Veteran's social and occupational impairment. The Veteran was evaluated by a private psychiatrist, Dr. C., in January 2011. Dr. C. opined that the Veteran's PTSD symptoms had been extremely severe and profoundly disabling since at least 2003. The doctor reviewed the Veteran's claims file, including the VA examination reports and treatment records, noting that the GAF scores assigned throughout did not adequately reflect the severity of the Veteran's PTSD symptoms. For example, the doctor noted that the June 2005 VA examiner concluded that the Veteran did not have a very severe disease process based on his reticence to talk about his experiences in Vietnam. However, Dr. C. stated that it is extremely common for patients with PTSD to be reticent when speaking about the traumas experienced during their stressor events. Dr. C. then noted that, instead of the GAF score of between 55 and 60 assigned at the June 2006 VA examination, he would not have assigned a GAF score greater than 40 based on the Veteran's symptoms of depression, chronic insomnia, flashbacks, free-floating anxiety, hypervigilance, avoidance of crowds, avoidance of standing in lines, social isolation, easy startle response, and history of anger problems. In addition, Dr. C. stated that the Veteran's alcohol abuse and antisocial behavior were comorbid diagnoses associated with the Veteran's PTSD. Dr. C. further stated that, although the Veteran's PTSD symptoms had always been severe, he had worked very hard at hiding them from family, friends, coworkers, and mental healthcare professionals. Indeed, the doctor stated he had not had a GAF score higher than 40 since before active service. Further, he had not been able to work since 2003, with the severity of his PTSD symptoms being the paramount issue stopping him from pursuing meaningful and gainful employment. Indeed, the Veteran was unable to function in any type of standard society situation, and certainly not in an occupational setting requiring interaction with coworkers, supervisors, and the public. Dr. C. assigned a current GAF score of 35, reflecting "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, 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). DSM-IV at 47. Dr. C.'s report clearly supports an evaluation in excess of 50 percent, as it demonstrates deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to PTSD symptoms. In addition, the GAF score of 35 is consistent with a 70 percent disability rating. The Veteran was afforded another VA examination in October 2011. He reported that he continued to have a "phenomenal" relationship with his wife, but no friends. He reported playing golf frequently, almost always with the same group of men. He continued to report that his most significant problem was his anger. He stated that he had been thrown out of the VFW club the previous summer after he called a commander in the club an insulting name. He denied depression, but stated that he experienced anxiety and anger. Despite his anger, he stated it was rare for him to get into a verbal altercation with someone, and he had not been physically aggressive toward anyone since the last VA examination. Although the VA examiner noted that the Veteran was laughing and joking during the interview, he stated that his jovial mood appeared to mask an underlying cynicism. The Veteran reported drinking 3 or 4 days per week, and drank between 6 and 7 beers and sometimes liquor on those days. The VA examiner noted that the alcohol consumption did not interfere with the Veteran's social and recreational life. The VA examiner further stated that the Veteran's antisocial behavior and substance abuse were features of his underlying PTSD, and assigned a GAF score of 58. In a May 2013 report, Dr. C. responded to the October 2011 VA examiner's opinion that a GAF score below the mid-50s did not make sense in light of the level of the Veteran's social functioning. Specifically, Dr. C. stated that the 2011 VA examiner exaggerated the Veteran's ability to function socially, noting that although the Veteran often denied suicidal thoughts and depression, he told Dr. C. that he was severely depressed with persistent suicidal ideation, in addition to having no control over his verbal aggression, and has had essentially no social life for the previous several years. Further, although the Veteran reported a very good relationship with his wife, Dr. C. stated that since the Veteran was intoxicated 3 to 4 days per week, he did not choose to and would not be able to interact with his wife during these periods. The Veteran also described symptoms of depression including anhedonia, despair, hopelessness, altered sleep, sadness, crying spells, irritability, shame, and guilt. These symptoms alone, according to Dr. C., would drop the Veteran's GAF score to between 41 and 50. Moreover, the Veteran continued to have intermittent passive suicidal ideation; although he was ashamed to discuss these feelings, he was able to discuss them with Dr. C. Further, although the Veteran attended the Elks Lodge once per month, he did so to drink alone and become intoxicated, and he had no other interactions with individuals besides his wife. The Veteran further stated he had stopped playing golf, as he felt uncomfortable, irritable, angry, and had urges to strike out at other individuals including his fellow golfers if they behaved in a fashion that he did not appreciate or accept. Dr. C. also stated that the Veteran went to great lengths to mask his PTSD symptoms, including from mental health care providers, including with laughter. Further, he used alcohol to mitigate his PTSD symptoms. Indeed, the Veteran stated that if he did not drink, he would not know what he would do or how he would behave, and was fearful of hurting others. Dr. C. assigned a GAF score of between 35 and 40. The Veteran's wife wrote a letter in March 2013 describing his PTSD symptoms. She stated that his passion for golf had disappeared in recent years, and that only a few people would play with him, as his impatience and short fuse led to confrontations. He did not deal well with traffic and often yelled and honked at others, such that she did not like riding with him in the car. He had thrown and broken two of their telephones because he did not like to be put on hold. Further, one month prior, he saw someone in their back yard and shot his gun because "it felt good." He stated he did not shoot the person because the person's back was toward him and he would have to pay for a lawyer. An attached police report confirms this incident as occurring in February 2013. Thus, the Veteran's wife's statement confirms ongoing problems with impaired impulse control as well as significant social impairment. The Board acknowledges the conflicting evidence in this case. Namely, none of the VA examinations or VA treatment records indicate the presence of significant deficits of orientation, speech, hygiene, memory, concentration, or thought process. Further, they indicate the Veteran denied suicidal ideation as well as near-continuous panic or depression affecting the ability to function independently. Further, the VA examination reports and treatment records support a finding of relatively high social functioning, as the Veteran reported that he went out weekly with his wife to various social gatherings. On the other hand, although the 2011 VA examiner opined that the Veteran's PTSD was not worse than previously or than what the current disability rating reflects, the Board finds that Dr. C.'s explanation of the Veteran's actual ability to function socially as well as his attempts to mask his PTSD symptoms to be very thorough. The disability picture described by Dr. C. more nearly approximates a higher, 70 percent, disability rating, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to symptoms including suicidal ideation, near-continuous depression, impaired impulse control, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and alcohol dependency. Despite the significant evidence against the claim, as described in the various VA examination reports and treatment records, resolving reasonable doubt in the Veteran's favor, the Board has assigned significant probative weight to Dr. C.'s report in assigning a higher 70 percent disability rating. In this regard, it is important for the Veteran to understand that there is significant evidence in this case that does not support the current 50 percent evaluation, let alone the 70 percent finding. In sum, the evidence relevant to the entire increased rating period is at least in relative equipoise as to whether there was occupational and social impairment with deficiencies in most areas, as required for a 70 percent disability rating under the rating criteria for mental disorders. 38 C.F.R. § 4.130. Namely, the evidence during this period reflects an increase in the severity of the Veteran's PTSD symptoms, characterized in particular by impaired impulse control, intermittent suicidal ideation, and alcohol dependency, as well as an increase in the level of social impairment caused by deficiencies in mood and antisocial behavior. Thus, the level of occupational and social impairment demonstrated by the evidence for the entire rating period is more nearly approximated by the 70 percent rating category, with deficiencies in most areas, as described above. Resolving any reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 70 percent disability evaluation for PTSD have been more nearly approximated for the entire rating period on appeal. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. The Board finds, however, that the criteria for a 100 percent disability rating have not been met for any part of the rating period on appeal. Specifically, the evidence does not demonstrate total occupational and social impairment, nor does it demonstrate any of the symptoms listed in the 100 percent rating category (with the exception of several episodes of danger of hurting others, but not persistently). In this regard, it is important for the Veteran to understand that the 70 percent evaluation assigned herein acknowledges significant problems, including many of the problems he and his attorney have indicated should provide the basis to award an even higher evaluation. A 70 percent evaluation indicates, generally, a 70 percent reduction in the Veteran's industrial capability and social adeptness. If the Veteran did not have any problems associated with his PTSD, there would be no basis for a compensable evaluation, let alone a 70 percent evaluation for PTSD, which is not always supported by the medical evidence cited above, for reasons cited above (see the October 2011 VA examination report, in particular). The critical question in this case, however, is whether the problems the Veteran has believably cited meet an even higher, 100 percent, level under the rating criteria. For reasons cited above, they do not, for any part of the rating period on appeal. Extraschedular Consideration The Board has considered whether an extraschedular evaluation is warranted for PTSD. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's PTSD is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9411, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence for the entire rating period on appeal, the Veteran's PTSD manifested impaired impulse control, depressed mood, disturbances of motivation and mood, anxiety, irritability, social isolation, nightmares, and inability to establish and maintain effective work and social relationships. These symptoms are part of the schedular rating criteria. In addition, the levels of occupational and social impairment are explicitly part of the schedular rating criteria. The GAF scores and alcohol dependence are also incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning. Moreover, all the Veteran's psychiatric symptomatology is contemplated by the schedular rating criteria, which rates by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effects on his daily life. In the absence of exceptional factors associated with PTSD, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). TDIU Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). 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). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a "living wage." See Moore v. Derwinski, 1 Vet. App. 356 (1991). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2012); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). In this case, the Veteran contends that he is unable to secure employment due to his service-connected PTSD. Specifically, in a May 2013 brief, the Veteran's attorney argues that the Veteran's PTSD symptoms - which include impaired impulse control, difficulty in adapting to stressful circumstances, and grossly inappropriate behavior - render him incapable of reliably handling even everyday levels of stress and frustration. The Veteran's service-connected disabilities, as evaluated under the VA Rating Schedule, are: (1) prostate cancer, evaluated as 100 percent disabling from January 11, 2012; (2) PTSD with major depressive disorder, evaluated as 70 percent disabling (granted herein) from July 27, 2004; (3) residuals of a shrapnel wound scar to the left knee, evaluated as noncompensably disabling from July 31, 1998; and (4) erectile dysfunction, evaluated as noncompensably disabling from January 11, 2012. His combined disability evaluation is 70 percent from July 27, 2004 (the date of the TDIU claim) to January 10, 2012, which is the entire period under consideration for a TDIU. There is no indication that the Veteran's noncompensable evaluations impact employability in any meaning way and no such contention has been raised. Thus, the Veteran meets the percentage requirements set forth in 38 C.F.R. § 4.16(a) for consideration of a TDIU; therefore, entitlement to TDIU is considered for that period based on the combined rating percentages met under 38 C.F.R. § 4.16(a). After a review of all the evidence, the Board concludes that the weight of the evidence demonstrates that a TDIU is not warranted for any period, in that the weight of the evidence is against a finding that the Veteran is unable to secure or follow substantially gainful employment due to service-connected disabilities during this time period. The evidence in favor of the Veteran's claim for TDIU includes the Veteran's multiple statements showing his belief that he is unemployable due to his service-connected PTSD. As mentioned above, in a May 2013 brief, the Veteran's attorney contends that the Veteran's PTSD symptoms - particularly his violent and angry impulses - render him unable to handle everyday levels of stress and frustration. Further, the Veteran's attorney avers that, although the Veteran is currently able to avoid stressful situations and thereby give the appearance that his PTSD symptoms are under control, this does not mean that he would not revert to reacting violently if he were to find himself in a stressful situation. Additional evidence in favor of the Veteran's claim for a TDIU includes two reports dated in January 2011 and May 2013 from Dr. C., a private psychiatrist, who reviewed at least some of the Veteran's claims file and interviewed the Veteran. Dr. C. wrote that, although the record suggests that the Veteran had to quit his job in 2003 due to a right knee injury, his PTSD has been severe enough to render him unemployable since at least 2003, if not before then. In this regard, it is important to note what Dr. C. cites: the Veteran left this job due to, in most part, a right knee injury. The doctor cited to PTSD symptoms of record since 2003 including having no close friends, being unable to tolerate company at home, persistent irritability and volatility, impulsivity, constricted in affect, and having ongoing homicidal ideation. Further, the Veteran was noted to be paranoid, hypervigilant, antagonistic toward almost everyone, angry, and to have mood instability. In addition, Dr. C. noted that the Veteran was quick to lose his temper and lash out inappropriately in situations he finds at all uncomfortable or inconvenient, such as being pressed to discuss his own mental health. Such volatile behavior and symptoms, according to Dr. C., were indicative of severe social and occupational impairment, and thus, he opined that the Veteran had been completely disabled due to PTSD at least since 2003. The evidence weighing against the Veteran's claim for TDIU includes voluminous evidence demonstrating that the Veteran quit his job in 2003 due to an on-the-job right knee injury. Private treatment records document the on-the-job right knee injury in May 2003, ultimately resulting in a workers' compensation claim and the Veteran quitting his job as a pipe fitter. A VA Form 21-4192 completed by the Veteran's former employer indicates that, prior to his last date of employment on May 29, 2003, he had not lost any time from work due to disability, indicating that his PTSD symptoms had not affected his employment. After many months of treatment for the right knee, in an August 2004 private treatment note, a physician opined that the Veteran was not capable of returning to his former employment as a pipe fitter, as this job required him to perform heavy labor. The doctor stated that, due to the Veteran's ongoing nonspecific pain, he was unable to perform such heavy labor. The Veteran was awarded Social Security Disability (SSD) benefits for his right knee medial meniscus tear effective from May 29, 2003, the date of the right knee injury. The award did not include any mental health symptoms as a basis for benefits, undermining Dr. C.'s "medical opinion". In this regard, the medical opinion of Dr. C. appears to avoid such highly probative facts that totally undermine the foundation of the opinion, placing into serious question the objectivity of the opinion. Based on the above, the Board must find this opinion is entitled to limited probative value, outweighed by other evidence of record. In this regard, it is once again important to note that not all evidence in this case supports the current Board findings that a 70 percent evaluation for PTSD is warranted at this time and there is significant evidence in this case which undermines the contentions of Veteran in this case. Additional evidence weighing against the Veteran's TDIU claim includes the Veteran's various statements indicating that he stopped working due to his right knee injury, as opposed to any mental health symptoms. For instance, at the October 2004 VA examination, he stated that he had not worked in the last 15 months due to knee surgery, and was to begin vocational rehabilitation with VA in two weeks (he was ultimately denied vocational rehabilitation, however). At the June 2006 VA examination, he stated that he had to quit his job in 2003 after he blew out his knee when he stepped on a rolling pipe. He reiterated this history at the August 2007 VA examination. In this regard, it is the Veteran's own prior statement that provide highly probative evidence against his claim, and his current contentions, and those of his spouse, being given less probative value by the Board. In addition, in the October 2011 VA examination report, the VA examiner opined that the Veteran's current level of disability was not severe enough to make work impossible, and that it was not mental health problems, but rather, an on-the-job injury, that ended his employment as a pipefitter in 2003. The VA examiner reasoned that the Veteran's PTSD did not appear to have worsened since the last VA examination in August 2007, noting that the Veteran was joking and laughing with the examiner, had regular acquaintances and an active social/recreational life, had a "phenomenal" relationship with his wife, and said his anger, although still a problem, had less frequently been expressed in the form of verbal altercations than in the past. Further, the Veteran stated he "loved" golfing with the same group of associates several times per week, belonged to the Elks and attended meetings, and was a regular at his new VFW. Moreover, he denied being depressed, and appeared unconcerned about the amount of alcohol he consumed and unconvinced of any negative influence of alcohol on his life. These facts undermine the Board's current findings, and even a 50 percent or 30 percent evaluation, let alone higher evaluations. The weight of lay and medical evidence shows that the Veteran's service-connected disabilities have not rendered him unable to obtain or maintain substantially gainful employment. The Veteran has not contended that his service-connected prostate cancer, knee scar, or erectile dysfunction has rendered him unemployable, nor does any of the medical evidence suggest that these conditions have affected his employment during the time period in question. Rather, the evidence demonstrates that a non-service-connected right knee injury rendered the Veteran unemployable, and that his service-connected PTSD, while causing some occupational impairment (as acknowledged by the 70 percent disability rating assigned herein), has not rendered him unable to secure or maintain gainful employment. In so finding, the again Board notes, as above, that there is significant evidence against the assignment of a higher, 70 percent, disability rating for PTSD, in light of the Veteran's level of social functioning, much less for a total rating based on individual unemployability due to service-connected PTSD, including the Veteran's use of alcohol. The Board has weighed and considered the Veteran's statements that his service-connected disabilities have rendered him unable to work; however, the weight of the lay and medical evidence demonstrates that the Veteran is not unable to secure substantially gainful employment due to his service-connected disabilities. There is rather significant evidence against this claim. For these reasons, the Board finds that the weight of the credible evidence demonstrates that the criteria for TDIU have not been met or more nearly approximated for any period. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). With regard to the increased rating claim, in a timely August 2004 letter, the Veteran was informed of the requirements needed to establish an increased evaluation for PTSD. In accordance with the requirements of VCAA, the VA letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. A June 2006 letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. Further, a May 2008 letter contained the specific schedular rating criteria that would be used to evaluate the Veteran's PTSD. The Board finds that any untimeliness in the notice provided is nonprejudicial, as the Veteran was provided with ample opportunities to submit additional evidence following additional adjudications of the claim and receipt of proper notice. With regard to the TDIU claim, following the Board's June 2011 remand that acknowledged an inferred claim for a TDIU, in a July 2011 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for a TDIU, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. The letter also described how VA determines disability ratings and effective dates. Thus, the notice provided in July 2011 satisfies the Board's June 2011 remand directives. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, VA examinations and opinions, and the Veteran's statements. As mentioned in the Introduction, in July 2010, the Court granted a Joint Motion for Remand, in which it vacated the Board's September 2009 decision and instructed that the Board attempt to locate a July 2007 VA treatment note containing a GAF score of 45 reference by the August 2007 VA examiner, notwithstanding the significant evidence in this case (the basis for the JMR the Board will not be addressed). Subsequently, the Board requested and received VA treatment records that included a July 18, 2007 VA treatment note; however, the VA treatment note does not contain a GAF score. Thus, it is assumed that the August 2007 VA examiner's notation of the GAF score was in error, and any further efforts to locate such a VA treatment note would be futile, as it does not appear to exist. The Board finds, therefore, that there has been substantial compliance with its June 2011 remand directive to locate the July 2007 VA treatment note. It factual finding of the Board is clear: remanding this case for this record again is simply factually unwarranted as the Board has the July 2007 treatment record. Further, the Veteran has been afforded an adequate examination on the issue of an increased rating for service-connected PTSD. VA provided the Veteran with examinations in October 2004, June 2005, June 2006, August 2007, and October 2011. More examinations would serve no constructive purpose. The Veteran's history was taken, and a complete mental health examination was conducted. Conclusions reached and diagnoses given were consistent with the examination reports. For these reasons, the Board finds that the Veteran has been afforded adequate examinations on the issue of an increased rating for service-connected PTSD. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, the October 2011 VA examiner addressed the question of whether the Veteran's service-connected PTSD renders him unemployable. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the October 2011 VA opinion obtained in this case are adequate as to the question of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected PTSD. The opinion was predicated on a full reading of the private and VA medical records in the Veteran's claims file, as well as comprehensive psychological evaluations of the Veteran. The VA nexus opinion considered all of the pertinent evidence of record, to include VA treatment records, comprehensive physical and psychological examinations, and the statements of the Veteran, and provides complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the TDIU claim has been met. 38 C.F.R. § 3.159(c)(4). Further, the October 2011 VA examination satisfies the Board's June 2011 remand directive. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER A 70 percent disability evaluation for PTSD, but no higher, is granted for the entire rating period on appeal. TDIU is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs