Citation Nr: 1321504 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 07-08 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to January 26, 2007. 2. Entitlement to a total rating for compensation based upon individual unemployability (TDIU) prior to January 26, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from May 1950 to May 1953. This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2006 and March 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2010, the Veteran provided testimony at a hearing before the undersigned Veterans Law Judge. In May 2010, October 2011, and September 2012, the Board remanded the claims for additional development and adjudicative action. The case has been returned to the Board for further appellant review. The issue of special monthly compensation (SMC) has been raised as the Board is granting 100 percent for PTSD for the period beginning May 10, 2006 and TDIU based on PTSD for the period prior thereto. The issue of special monthly compensation for the period prior to January 26, 2007 not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The Veteran filed a claim for service connection for PTSD on December 6, 2005. Service connection was granted, and the Veteran appealed the initial evaluation for PTSD. The Veteran later filed a claim for TDIU in October 2006. Despite this, the Board finds that a TDIU claim was part and parcel with the Veteran's initial claim for PTSD. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a total rating for compensation based upon individual unemployability for the period from May 10, 2006 to January 25, 2007 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's PTSD is manifested by symptoms including anxiety, depression, nightmares, suicidal ideation, and impairment of relationships with others, all resulting in deficiencies in most areas, but less than total social and occupational impairment for the period prior to May 10, 2006. 2. The Veteran's PTSD is manifested by symptoms approximating total occupational and social impairment beginning May 10, 2006. 3. The Veteran was unable to secure and follow substantially gainful employment as a result of his service-connected PTSD for the period prior to May 10, 2006. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for PTSD have been met for the period prior to May 10, 2006. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, DC 9411 (2012). 2. The criteria for a disability rating of 100 percent for PTSD have been met for the period beginning May 10, 2006. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 3. The criteria for entitlement to a TDIU have been met for the period prior to May 10, 2006. 38 C.F.R. §§ 3.340, 4.16(a), (b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In January 2006, the agency of original jurisdiction (AOJ) sent a letter to the Veteran providing the notice required for the initial claim of service connection for PTSD. Service connection was subsequently granted, and the Veteran appealed the April 2006 RO decision granting service connection for PTSD effective December 6, 2005. In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). That burden has not been met in this case. Neither the Veteran nor his representative alleges such prejudice in this case. Therefore, no further notice is needed. Regardless, in a letter dated in March 2006, the AOJ notified the Veteran of the process by which disability ratings and effective dates are determined. The Veteran was given the opportunity to submit additional information. The claim subsequently was readjudicated several times and most recently in an April 2013 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Veteran has been adequately notified of the information and evidence necessary to substantiate his claim for a higher rating. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The Veteran filed a claim for service connection for PTSD on December 6, 2005. Service connection was granted and the Veteran appealed the initial evaluation for PTSD. The Veteran later filed a claim for TDIU in October 2006. Despite this, the Board finds that a TDIU claim was part and parcel with the Veteran's initial claim for PTSD as the Veteran has asserted that he is unemployable due to PTSD. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service treatment records have been associated with the claims file. All identified and available post-service treatment records have been secured. The Veteran has been medically evaluated and a medical opinion has been sought in conjunction with his claim. The duty to assist has been fulfilled. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to January 26, 2007. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, as regards the motion before the Board. The Veteran must not assume that the Board has overlooked any pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Following an initial award of service connection for a disability, separate ratings can be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board notes that the RO staged the Veteran's evaluations during the appeal period by assigning a 50 percent evaluation for part of the period and a 100 percent evaluation for another part. When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of examination. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Global assessment of functioning (GAF) scores, which reflect the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health, are also useful indicators of the severity of a mental disorder. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM- IV). GAF scores between 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-7 (1994). A GAF score of between 51 and 60 is defined as "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. An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 31, 1995). In this decision, the Board considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has considered the symptoms indicated in the rating criteria as examples or symptoms "like or similar to" the Veteran's psychiatric symptoms in determining the appropriate schedular rating assignment, and, although noting which criteria have not been met, has not required the presence of a specified quantity of symptoms in the Rating Schedule to warrant the assigned rating for PTSD. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130. 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 understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted for PTSD if the Veteran exhibits: 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 actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. For the period prior to May 10, 2006 After having carefully reviewed the evidence of record, the Board finds that resolving reasonable doubt in the Veteran's favor, the evidence supports the award of a 70 percent evaluation for PTSD prior to May 10, 2006 and 100 percent thereafter. The reasons follow. The Veteran is currently assigned a 50 percent evaluation for the period prior to January 26, 2007 and a total evaluation for PTSD beginning January 26, 2007. The RO granted the total rating in an August 2009 rating decision based on the results of a January 26, 2007 VA examination. The Veteran originally filed his claim for PTSD December 6, 2005. At that time, the Veteran reported that he had nightmares of combat, depression, anxiety, suicidal thoughts, feelings of frustration, and problems with his wife and son. Shortly before he filed his claim, the Veteran presented to urgent care at the VA complaining of being "nervous", irritable, and having a "short fuze." He reported that he stayed at home most of the time and was not motivated to do anything. The Veteran also reported not sleeping well. The VA physician diagnosed the Veteran with adjustment disorder with depression and anxiety and prescribed Prozac. In a December 2005 VA treatment record, the Veteran was diagnosed with depression, and rule out PTSD. The Veteran had nightmares once or twice a month and loss of interest. He avoided social events. He had speculated aimlessly about suicidal ideation but has never made plans. The examining psychiatrist increased his current medication and added another medication. The examiner diagnosed depression not otherwise specified and assigned a GAF score of 46. In January 2006, the Veteran was afforded a VA examination. At the time of the examination, he was receiving mental health treatment through the VA and was prescribed Prozac and Trazadone. During the examination, the Veteran reported recurrent and intrusive distressing recollections of his stressors, and intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. The Veteran reported that he made efforts to avoid thoughts, feelings, or conversations associated with trauma. He also avoided activities, places, or people that arouse recollections of the trauma, inability to recall an important aspect of the trauma. He had markedly diminished interested or participation in significant activities, feelings of detachment and estrangement from others and a sense of a foreshortened future. He had difficulty falling and staying asleep and difficulty concentrating. He had nightmares weekly to monthly and memories of his trauma weekly but all other symptoms were present most of the time. The Veteran had been married twice and was married to his second wife for the last six years. The Veteran reported that he did not go anywhere. He reported that he had no friends and no social life. In the past, he liked to read but did not read anymore. Watching football was his only hobby. The examiner described the Veteran as isolative, detached and anhedonic. Upon examination, the Veteran was neatly groomed, appropriately dressed, his speech was clear and coherent, but he was suspicious toward examiner. His affect was restricted and his mood was depressed. He was oriented to person, place and time. The Veteran had suicidal ideation. He had moderate sleep impairment and took medication to sleep. The Veteran had good impulse control and no episodes of violence. His remote and immediate memory was normal but recent memory was mildly impaired. The examiner noted a past history of needing to self medicate with alcohol to face crowds. The examiner also noted that the Veteran had symptoms of argumentativeness and irritability. The examiner diagnosed the Veteran with PTSD and depression secondary to PTSD and assigned a global assessment of functioning score (GAF) of 60. The Veteran reported that he retired in 1995 due to age or duration of work. The examiner found that there was a good chance that retirement and his inactivity exacerbated his symptoms. Symptoms had been present for years but alcohol, detachment and work helped him to cope. Currently, the Veteran refrained from substance use, was married and not working. The examiner opined that the Veteran had an inability to perform work tasks only during periods of stress. The examiner also noted that the Veteran had frequent but moderately impaired work, family and other relationships. In a May 2006 treatment record, the Veteran was prescribed three medications for his PTSD. A GAF score of 54 was assigned. In a May 2006 statement, the Veteran disagreed with the RO's April 2006 decision which granted service connection for PTSD and assigned a 30 percent evaluation. Specifically, the Veteran claimed that the RO incorrectly found that the Veteran did not have panic attacks when the Veteran had panic attacks two or more times a week. The Veteran also reported that he was a "nervous wreck" and could not sleep. He explained that he checked to make sure that the car was locked and the windows and doors of the house were locked. The Veteran reiterated that he reported the following symptoms in his original claim: suicidal thoughts, depression, anxiety, and nightmares. For the period prior to May 10, 2006, the Veteran's GAF scores ranged from 46 to 60 which denotes moderate to serious symptoms. Although the Veteran had anxiety and suicidal ideation, the evidence does not show that had total occupational and social impairment. Although he was not able to work very much, the Veteran was able to work during this period and maintained a relationship with his wife. A 21-4192 form from the Veteran's grocery store employer notes that the Veteran worked from November 7, 2004 to May 10, 2006. In the last 12 months prior to ending his employment, the Veteran made $2,417. Prior to this, the Veteran worked as a sexton at a church from July 1997 to August 1998. As to occupational impairment, the evidence shows that the Veteran retired from his job as a longshoreman in 1995 but work part-time thereafter. Employment records recently submitted show that the Veteran stopped working in May 2006. The Veteran appears to have worked very little and made very little money. He only worked at a grocery store in the winter time while in Florida, and twelve months prior to the last day of his employment, he only made $2,417. In addition, the Veteran's own statements show that his job was affected by his PTSD symptoms. He reported in a January 2013 statement that while working at the grocery store, he did not want to be around people and knew his PTSD symptoms were worsening. Although the Veteran stopped working in May 2006 due to his PTSD symptoms and did not work again, the evidence shows that the Veteran was able to work prior to May 10, 2006. Therefore, prior to May 10, 2006 the Veteran did not have total occupational impairment. As to total social impairment, both the January 2006 and January 2007 examination report noted that the Veteran was detached and isolative but that the Veteran was indeed married. The January 2006 report noted that he did not go anywhere. He reported that he had no friends and no social life. VA treatment records from November and December of 2005 show that the Veteran avoided social events and stayed at home. Therefore, the Veteran appears to have maintained a relationship only with his wife. The Veteran appears to have had suicidal ideation for the entire period on appeal, although no plan or intent. The Veteran reported suicidal thoughts in his original December 2005 claim and also in May 2006 and November 2006 statements. The January 2007 examiner noted that suicidal ideation was a new symptom noted at the examination, but the claims file shows that the Veteran has consistently reported suicidal ideation throughout the appeal period beginning with his original claim. The Board acknowledges that the January 2007 examiner opined that the Veteran's symptoms were more intense since the January 2006 examination. Despite this, the January 2007 examiner also notes that the Veteran has had several symptoms for the entire year prior to the January 2007 examination. During the January 2007 examination, the Veteran reported depression, suicidal thoughts that come and go, occasional crying spells, lethargy and lack of motivation in the past year. The January 2007 examiner noted that the Veteran had been without work and inactive for the past year. This statement appears to be inaccurate as the Veteran's employer reported that the Veteran worked until May 10, 2006. Resolving doubt in the Veteran's favor, the Board finds that all psychiatric symptoms manifested prior to May 10, 2006, and the severity thereof, more nearly approximate occupational and social impairment with deficiencies in most areas including work, family relations, thinking and mood due to symptoms which included suicidal thoughts, obsessional rituals, depression, isolation, and difficulty in adapting to stressful circumstances. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). For these reasons, the Board finds that a 70 percent evaluation is warranted for the period prior to May 10, 2006. For the period beginning May 10, 2006 In a November 2006 statement, the Veteran reported taking three medications for his psychiatric problems. He also noted nightmares, feelings of hopelessness, helplessness, worthlessness and suicidal thoughts. The Veteran also explained that he did not socialize. A November 2006 VA treatment record indicated that the Veteran had recollections of combat-zone events from Korea. He was often anxious, tense and avoidant of others at times. He awakened after nightmares with tremulousness, sweating and near-panic. He had a sense of reliving traumatic events biweekly. He reportedly was able to enjoy a few activities such as watching television and socializing with neighbors. His mood was anxious and tense but less depressed. His thought content was focused on PTSD symptoms. The assigned GAF was 50. Later that month it was noted that he had frequent anxiety and periodic near-panic episodes. He often avoided contact with others and felt more comfortable alone. The assigned GAF was 48. In his Form 9 (received by the VA in January 2007), the Veteran reported that his depression and anxiety have worsened, and he had panic attacks where he would get short winded, nervous, and sweaty. The Veteran was provided a VA examination in January 2007 with the same examiner who evaluated him in January 2006. Details of his examination will be described below because they refer to the period prior to January 26, 2007, which is currently before the Board. At the time of the examination, the Veteran was taking three medications for his psychiatric problems. He reported depression, suicidal thoughts that come and go, occasional crying spells, lethargy and lack of motivation in the past year. At the time of the examination, the Veteran was still married, but he was detached and wants to be alone. He spent most of time alone in chair in his room. The examiner found the Veteran to be inactive and isolated. Upon examination, the Veteran was appropriately dressed, lethargic, had soft or whispered speech, had a flat affect, and depressed. He was easily distracted and had a short attention span. He was oriented to person, time and place. The Veteran was taking medicine to sleep but was still having trouble sleeping. The Veteran had panic attacks one to two times a week but mostly from scary stimuli like bad dreams. Once or twice, he had a panic attack out of the blue. The Veteran had passive suicidal thoughts for the past year, at least weekly. The Veteran reported being verbally aggressive toward wife. The Veteran explained that he stopped working at a grocery store where he bagged groceries because he did not feel like working around others, felt high anxiety and needed to isolate. He also was tired due to medications. The examiner opined that the Veteran was unemployed due to his mental disorders. The examiner diagnosed the Veteran with chronic PTSD with moderate depression. A GAF score of 48 was assigned. The examiner noted that since the last examination the Veteran was experiencing more intense symptoms and some increase in symptoms. The examiner noted that the Veteran had been without work and inactive for the past year. The Veteran would currently sit at home, isolate, watch television and sleep. The Veteran was also on three psychotropic medications to manage symptoms. The examiner noted that the Veteran now had passive suicidal ideation and panic attacks since last examination. The Veteran symptoms were also worse. The examiner opined that anxiety and depression were too high to allow for the Veteran to find and maintain work. The Veteran felt too unsafe and threatened by environment and others. In March 2007, the Veteran was afforded a general VA examination. The Veteran reported that he had worked for a grocery store for seven years in the winter in Florida but did not return this past winter. He stopped working because he had pain in the right lower extremities and had difficulty being around other people. The Veteran had continued to work part-time jobs since his retirement in 1995 but was unable to return to work since 2006 due to poor tolerance to standing, walking, moving and overall fatigue. The Veteran's concentration was somewhat decreased. The claims file includes both individual and group treatment for his PTSD symptoms for the period prior to January 26, 2007. In a January 2013 statement, the Veteran reported that while working at the grocery store, he knew that he did not want to be around people and that his PTSD symptoms were getting worse. He eventually decided to not work any longer. The RO assigned the 100 percent evaluation effective as of January 26, 2007, the date of the VA examination, however, the examiner noted that the symptoms were more intense and there was some increase in symptoms since the prior examination. The examiner addressed the changes in symptomatology that the Veteran reported during the course of the prior year. Accordingly, the Board cannot find reason to determine that a total rating was not warranted prior to the date of the examination. The Board finds that the Veteran's symptoms have essentially been consistent prior to and after May 10, 2006, with the noted exception that the Veteran was able to work prior to May 10, 2006. In light of the Veteran's ability to work, total occupational impairment is not shown prior to May 10, 2006, thus warranting a 70 percent evaluation for the period prior thereto, and a 100 percent evaluation is warranted for the period beginning May 10, 2006. The criteria under Diagnostic Code 9411 specify that total occupational and social impairment must be shown for a 100 percent evaluation. While the Veteran has been able to maintain a relationship with his wife, the evidence shows that his symptoms more closely approximate total occupational and social impairment than the criteria for a 70 percent rating for the period beginning May 10, 2006. A 100 percent rating is, therefore, granted beginning May 10, 2006. 38 C.F.R. §§ 4.7, 4.21 (2012). Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected PTSD is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran reports multiple psychiatric symptoms, including anxiety, depression, nightmares, suicidal ideation, and similar symptomatology. The current 70 percent rating contemplates these and other psychiatric symptoms. Thus, the Veteran's current schedular rating under DC 9411 is adequate to fully compensate him for his disability on appeal. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) for the period prior to May 10, 2006 is not warranted. As a 100 percent evaluation has been granted for PTSD for the period beginning May 10, 2006, the application of 38 C.F.R. § 3.321(b)(1) for that period is moot with respect to that issue. TDIU prior to May 10, 2006 The Veteran essentially contends that his service-connected PTSD symptoms render him unemployable. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). The Court noted the following standard announced by the United States Court of Appeals for the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the Veteran. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the (service-connected) condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service- connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. In this case, the Veteran is service-connected for his PTSD symptoms evaluated as 70 percent per this decision for the period prior to May 10, 2006. The Veteran has other disabilities which are service-connected but the Board is basing the TDIU grant only on the Veteran's PTSD symptoms. Therefore, the effective date for TDIU would be December 6, 2005, the date of the Veteran's claim for service connection for PTSD. Thus, the Veteran meets the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a). The remaining question is whether his service-connected PTSD symptoms preclude him from obtaining or engaging in substantially gainful employment. As noted above, 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). The evidence shows that the Veteran retired from his job as a longshoreman in 1995 but continued to work part-time since that time. Employment records recently submitted show that the Veteran worked until May 10, 2006. See VA Form 21-4192 from Winn Dixie. Despite this, the VA Form 21-4192 from Winn Dixie shows that the Veteran worked very little ("as needed") and made very little money. He only worked at a grocery store in the winter time while in Florida, and twelve months prior to the last day of his employment, he only made $2,417. Therefore, even though the Veteran worked until May 10, 2006, his employment was marginal at best and not considered substantially gainful employment. In addition, the Veteran's own statements show that his job was affected by his PTSD symptoms. He reported in a January 2013 statement that while working at the grocery store, he did not want to be around people and knew his PTSD symptoms were worsening. He ended his employment with Winn Dixie in September 2006 and he last worked on May 10 due to his PTSD symptoms and did not work again. See Veteran's statement dated in January 2013. The January 2007 VA examiner noted that the Veteran quit his job at the grocery store due to his high anxiety and depression. The examiner opined that the Veteran was unemployable and that the Veteran's anxiety and depression were too high to allow the Veteran to find and maintain work. He felt too unsafe and threatened by his environment and others. Based on review of the evidence, the Board finds that a TDIU is warranted. The weight of the evidence clearly demonstrates that the Veteran's PTSD symptoms are of such severity as to preclude employment. The January 2007 examiner opined that the Veteran was unable to engage in substantially gainful employment due to the service-connected PTSD. There is no evidence to the contrary. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). As such, the Board finds that entitlement to TDIU is warranted. ORDER A 70 percent evaluation for PTSD is granted for the period prior to May 10, 2006, subject to the laws and regulations controlling the award of monetary benefits. A 100 percent evaluation for PTSD is granted for the period beginning May 10, 2006, subject to the laws and regulations controlling the award of monetary benefits. A total rating for compensation based upon individual unemployability is granted due to the Veteran's PTSD symptoms for the period from December 6, 2005 to May 9, 2006. REMAND As noted above, the Board is referring the issue of entitlement to special monthly compensation under the provisions of 38 U.S.C. § 1114(s) because the Board is granting a 100 percent evaluation for the Veteran's PTSD for the period beginning May 10, 2006 and TDIU solely based on PTSD symptoms prior thereto. The Board notes that the Appeals Management Center (AMC) granted special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. 3.350(i) effective January 26, 2007 in an October 2012 rating decision. The issue of entitlement to a total rating for compensation based upon individual unemployability from May 10, 2006 to January 25, 2007 may become moot after the AMC/RO decides whether special monthly compensation is warranted in this case. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation). In light of the above referral of SMC, the Board finds that the matter of entitlement to TDIU beginning May 10, 2006 is inextricably intertwined with that issue. For this reason, the Board is remanding the issue of TDIU. Accordingly, the case is REMANDED for the following action: 1. After taking any development action deemed warranted, readjudicate the claim for entitlement to a total rating for compensation based upon individual unemployability for the period from May 10, 2006 to January 25, 2007. [NOTE: THE ISSUE OF ENTITLEMENT TO TDIU FROM MAY 10, 2006 TO JANUARY 25, 2007, BASED ON A SINGLE DISABILITY OTHER THAN PTSD, IS INEXTRICABLY INTERTWINED WITH THE ISSUE OF ENTITLEMENT TO SMC UNDER 38 U.S.C.A. § 1114(S) THAT WAS REFERRED IN THE INTRODUCTION.] If the benefit sought remains denied, provide a supplement statement of the case and, if otherwise in order, return the Veteran's VA claims folder to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs