Citation Nr: 1323470 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 08-37 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial higher disability evaluation for posttraumatic stress disorder (PTSD), evaluated as 50 percent disabling prior to January 3, 2012, and as 70 percent disabling since January 3, 2012. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to July 1970. The Veteran was awarded the Combat Action Ribbon. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision by the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). A hearing on this matter was held before the undersigned Veterans Law Judge (VLJ) sitting at the RO on September 21, 2010. A copy of the hearing transcript has been included with the evidence of record. In December 2011, the Board remanded these issues to the agency of original jurisdiction (AOJ) for further evidentiary development, which has been completed. In a January 2013 rating decision, the AOJ increased the evaluation for PTSD from 50 to 70 percent, effective January 3, 2012. As the award does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In April 2013, the Veteran submitted a medical statement in support of TDIU claim. Given the favorable outcome reached below, no additional action in this regard is needed. 38 C.F.R. § 20.1304(c) (2013). A review of the file suggests that the Veteran experienced or experiences alcohol abuse. As such, the Veteran may wish to pursue a claim of entitlement to service connection for alcohol abuse as secondary to PTSD. The matter is referred to the RO for any action deemed appropriate. FINDINGS OF FACT 1. Prior to April 15, 2010, PTSD was manifested by symptoms no worse than occupational and social impairment with reduced reliability and productivity due to symptoms such as impairment of memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. 2. Since April 15, 2010, PTSD has been manifested by symptoms no worse than occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood, due to such symptoms as 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); neglect of personal appearance and hygiene; difficulty adapting to stressful circumstances; and an inability to establish and maintain effective relationships. 3. Since April 15, 2010, the Veteran's service-connected PTSD has, as likely as not, been of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability evaluation in excess of 50 percent for PTSD prior to April 15, 2010, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for an initial disability evaluation of 70 percent, but no higher, for PTSD, as of April 15, 2010, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411 (2012). 3. As of April 15, 2010, the criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran was afforded a hearing before a VLJ in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. The VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the claims. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating, and sought to specifically identify any pertinent evidence not currently associated with the claims file. In addition, the Veteran volunteered his treatment history. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). There is no indication that any additional action is needed to comply with the duty to assist. VA medical treatment records have been obtained; the Veteran has not identified any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration (SSA) disability determination, and the records considered in that determination, have been obtained. 38 C.F.R. § 3.159(c)(2). VA examinations have been conducted which appropriately discuss the level of severity of the Veteran's symptoms. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Thus, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim on appeal. 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); Quartuccio, supra. Increased Rating Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. Under the Rating Schedule, the extent to which a veteran's service-connected disability affects his ability to function under the ordinary conditions of daily life is determined, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. As noted, the Veteran disagreed with the evaluation assigned in connection with the original grant of service connection. Accordingly, the possibility of the assignment of separate, or "staged" ratings for separate periods of time, based on the facts found, must be considered. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's PTSD is rated under Diagnostic Code 9411. Pursuant to this Diagnostic Code, a 100 percent evaluation is warranted if the evidence establishes 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 oneself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. A 70 percent evaluation is warranted if the evidence establishes 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 worklike setting); inability to establish and maintain effective relationships. Id. A 50 percent evaluation is warranted if the evidence establishes 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; difficulty in establishing and maintaining effective work and social relationships. Id. The list of symptoms in the rating formula is not intended to constitute an exhaustive list, but rather shows examples of the types and degrees of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the applicable diagnostic code. Instead, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). More recently, in Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. In the context of a 70 percent rating, § 4.130 contemplates initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas. The Global Assessment of Functioning (GAF) scale reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240 (1995). See also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV). A GAF score of 51-60 is indicative of moderate symptoms (e.g., flat effect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 41-50 is indicative of 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). Prior to April 15, 2010 Service connection was established for PTSD in April 2008, and a 30 percent disability rating was assigned, effective November 29, 2007. In November 2008, the AOJ increased the disability evaluation to 50 percent, effective November 29, 2007. The Veteran perfected an appeal of the assigned rating later that month. In January 2013, the AOJ granted a disability evaluation of 70 percent, effective January 3, 2012. The Veteran first reported for clinical treatment of psychiatric treatment in March 2006. He stated that he had nightmares about Vietnam service, and that he felt depressed, grouchy, irritable, angry, and very negative. He wondered why he bothered waking up each day. He had fleeting suicidal ideation but no intent. He was employed on a full-time basis. His boss and coworkers seemed to be accommodating of his general irritability, but it was affecting his relationship with his wife of 35 years, with whom he was no longer intimate. He did have good relationships with his three daughters. His appetite was low and he had lost weight. His sleep was fragmented, with nightmares. He reported a "terrible temper" for many years and alluded to a "severe argument with his wife many years ago." He also felt paranoid and "jumpy" at times. He asserted that he occasionally heard voices, but the clinician noted that the Veteran had difficulties with his hearing, and felt that the Veteran may be mistaking environmental sounds for auditory hallucinations. A GAF score of 50, indicative of serious symptoms, was assigned. During a May 2006 clinical evaluation, the Veteran agreed to separate the ammunition from his firearms and to keep one firearm locked up. The difficulties in his marriage continued, but the Veteran was making efforts to improve his relationship with his wife. He was also attempting to decrease his alcohol intake. A GAF score of 50 was assigned. In December 2006, the Veteran stated that although psychotropic medications helped his symptoms somewhat, he was hitting his wife in his sleep and had very fitful sleep otherwise, which was very distressing to him. He continued to work on his relationship with his wife. A GAF of 50 was assigned. In March 2007, the Veteran reported that he and his wife had separated after a physical altercation. He continued to struggle with poor sleep. A GAF of 55, indicative of moderate symptomatology, was assigned. In June 2007, the Veteran reported worsening nightmares and depression. He felt his wife and daughters did not care about him. The GAF score was 55. During a July 2007 psychiatric consultation, a mental status examination showed an anxious and depressed mood, with congruent affect. The Veteran reported passive suicidal ideation with no plan or intent. The evaluation showed "powerful avoidance tendencies," re-experiencing via nightmares, intrusive thoughts, and environmental triggers. Hyperarousal and emotional numbing had caused serious marital discord. A GAF of 50 was assigned. In November 2007, the Veteran's symptoms were essentially unchanged, although he and his wife were getting along somewhat better. His boss was sympathetic to the Veteran's physical restrictions due to nonservice-connected peripheral vascular disease, but the Veteran was unsure how much longer this would last. A GAF of 55 was assigned. In March 2008, the Veteran reported that he had "really no relationship with his wife, just sharing the same house." His nightmares continued. His only joy in life was his dog. He was "not tolerating work due to pain, laments concern about the same." In July 2008, the Veteran told his VA psychiatrist that his claim for an increased rating had exacerbated his PTSD symptoms, but he did not elaborate on the severity of his symptoms. His work had cut back to 4 days a week, and he thought he might be laid off. His GAF score was 55. He reported similar symptoms during a clinical evaluation in September 2008. In January 2009, the Veteran advised his VA psychiatrist that his hours were still being cut back at work. He was experiencing a significant amount of stress as a result of difficulties with his mortgage lender. Self-reported symptoms included severe depression and poor memory and concentration. He continued to take pleasure in his relationship with his dog. A GAF score of 55 was assigned. In May 2009, the Veteran reported that he was back up to 50 hours a week at work. The situation with his mortgage lender had resolved. The Veteran felt that the difficulties in his marriage centered around his drinking, and he discussed this at length with the counselor. Otherwise, his symptoms were unchanged. A GAF of 55 was assigned. During an August 2009 clinical evaluation, the Veteran reiterated that he was not ready for PTSD group therapy, since he did not like crowds. His mood was improved as a result of psychotropic medications, and he had cut back on his alcohol use. A GAF score of 55 was assigned. In December 2009, the Veteran's PTSD symptoms were largely unchanged, but he had been laid off from work. He hoped for rehire in the spring, but felt that this was unlikely given his age and physical condition. Prior to April 15, 2010, the Veteran's PTSD did not more nearly approximate the criteria for a 70 percent rating. The evidence describes a fairly consistent pattern of symptomatology including social isolation, depression, subjective complaints of poor memory and concentration, sleep impairment, irritability, and disturbances of motivation and mood. However, there was no circumstantial, circumlocutory, or stereotyped speech; difficulty understanding commands; or objective impairment of memory, concentration or judgment. There was no reported impairment of thought process, nor were delusions, hallucinations, suicidal ideation with plan or intent, homicidal ideation, or psychosis observed. The Veteran's overall clinical picture prior to April 15, 2010 did not approximate these symptoms. The Veteran's affect in general was appropriate to mood. During this period of time, the Veteran's GAF scores ranged between 50 and 55, indicative of moderate-to-serious symptoms. The Board finds that the Veteran's symptoms during the period of time in question are appropriately reflected in the GAF scores. The record shows a clear connection between PTSD and interference with the Veteran's social interaction and ability to enjoy life, but it does not show that he had an inability to establish and maintain effective relationships, which is necessary to award the next higher rating of 70 percent. Indeed, prior to April 15, 2010, the Veteran maintained full-time employment, with the exception of layoffs due to economic factors. He stated to his VA clinician that his difficulties at work stemmed primarily from his poor physical condition, and that his boss and co-workers seemed to tolerate his PTSD symptoms. He was laid off from his job in December 2009, and he hoped for rehire. Prior to April 15, 2010, the Veteran's symptoms were not productive of severe occupational impairment. Additionally, although the Veteran's social contacts were limited, he maintained a relationship, albeit a strained one, with his wife. Although his daughters have described their father as physically abusive, obsessed with firearms and clearly depressed, he still maintained a good relationship with his children and grandchildren. Thus, while his ability to maintain social contacts was diminished, it was not productive of the complete inability to establish or maintain effective relationships of a severity that is indicative of a 70 percent rating. Other symptoms required for a higher 70 percent evaluation were neither complained of nor observed by medical health care providers, including obsessional rituals, illogical, obscure, or irrelevant speech, or impaired impulse control. The medical evidence largely demonstrated that the Veteran presented with appropriate affect. There was no evidence of psychotic symptoms or cognitive deficits. During clinical evaluations, the Veteran was adequately groomed and able to take care of himself physically. The Veteran was otherwise able to engage in activities of self-care. Such findings are not consistent with increased psychiatric symptomatology, nor are they consistent with the rating criteria required for the assignment of a 70 percent evaluation. That is, the Veteran's symptoms are not of such severity, frequency, or duration to result in occupational and social impairment with deficiencies in work, family relations, judgment, or thinking due to symptoms set forth or analogous to those proscribed for the assignment of a 70 percent rating. A disability evaluation in excess of 50 percent for PTSD prior to April 15, 2010, is not warranted. Since April 15, 2010 During an April 15, 2010 clinical evaluation, the Veteran reported that he was still out of work, with little hope of rehire. His depressive symptoms had increased. He often found he could not get out of bed. He was frequently tearful, had fragmented sleep and was constantly fatigued. He had little appetite and had lost weight. A GAF score of 50 was assigned. In September 2010, the Veteran noted that he had been approved for disability benefits from the SSA. A review of his SSA records reflects that his psychiatric symptomatology was not evaluated during his evaluation for eligibility for disability benefits, and SSA disability benefits were granted as a result of nonservice-connected physical disabilities. Neither PTSD nor any other psychiatric disorder was mentioned as playing a role in the Veteran's disability. The Veteran stated to his VA clinician that his appetite was still poor and that he was continuing to lose weight, although he was trying to supplement his diet with nutritional milkshakes. He was depressed all the time. He was staying up all night wandering around his yard, and was very irritable. He and his wife were on speaking terms, and his wife had taken away his weapons for safety. He was wondering if life was worth living, but had no plans to commit suicide. A GAF score of 48 was assigned. During his September 2010 hearing, the Veteran described himself as more withdrawn. He cared for few people other than his children and grandson. He found waking up each day and going through life a "hassle." Any responsibility "upsets me to no end and I get flustered and can't talk." He further stated that he "can't deal with" anyone "most of the time." He refused PTSD group therapy because he did not like crowds. He had frequent suicidal thoughts, and stated that his wife had once stopped him from committing suicide. He testified that he had also threatened his VA clinician. He described "obsessional rituals" which included guarding the perimeter of his property and checking the windows. He had broken sleep which was interrupted with frequent nightmares. He had "continuous anxiety attacks" prompted by having to make any kind of decision. These episodes occurred at least once per day. He testified that he depended on his wife for "pretty much everything." He had periods of irritability and outbursts. His family members had recently taken his guns away from him. His wife had to remind him to keep up with his hygiene. He had only one close friend. He did not attend church. He had difficulty in his marriage, which had begun in 2007 when his PTSD symptoms first returned. His nightmares were so violent that he had assaulted his wife in his sleep. He was not employed, stating that he had been laid off. He had not missed work as a result of his PTSD symptoms, but stated that he forced himself to go. He later testified that his physical disabilities kept him from performing the duties of his job. He had tried to obtain employment since then, but felt that nobody wanted to hire him because of his medications and his age. He felt that his life was ruined, as were those of his wife and daughters as a result of his PTSD. He drank too much alcohol and had poor nutrition, often needing to be reminded to eat. He stated that his lack of appetite was the result of a lack of motivation to care about his nutrition. The Veteran's three daughters and a friend submitted statements as to the severity of his condition in September 2010. All of them felt that the Veteran was obviously depressed. His daughters recounted years of irritability with violent outbursts, episodes of physical abuse, alcohol abuse and weight loss. His youngest daughter reported seeing her father walking around with a gun, and talking at other times about "blowing his brains out." Another daughter reported that her father had a very difficult time engaging anyone in conversation, and that he had a "fascination" with firearms, sometimes pointing weapons at his wife. The children had witnessed their father choking their mother and calling her a "gook." They had heard him talking in his sleep and discussing the contents of nightmares. All of them recounted stories that their father had told about his wartime experiences and how his service had negatively affected him. In October 2010, the Veteran reported being even more depressed, and he now roamed his yard at night with a rifle in his hand. His daughter and son-in-law had moved in and he was gaining some weight as they were doing the cooking. A GAF of 48 was assigned. The Veteran's symptoms were essentially identical in January 2011 and April 2011, although the Veteran's poor nutrition did improve somewhat and he began gaining some weight. In September 2011, the Veteran reported for a VA clinical evaluation unshaven, with long hair, and in a generally disheveled state. He stated that he was "quite flustered" around other people. He had no interest and no appetite. His weight was declining. The examiner wrote that she was hopeful the Veteran's benefits would be increased, as he was, in her view, "unable to gain or sustain employment due to the depth of his depression and PTSD symptomatology." He felt that life was not worth living, but did not plan to commit suicide. He did hope to travel to Alaska and go salmon fishing with his daughter and son-in-law. The Veteran spoke in a monotone voice during the interview. A GAF score of 46 was assigned. The Veteran underwent a VA examination in January 2012. The examiner noted that the Veteran was diagnosed with PTSD, depression and alcohol abuse, but that the symptoms of each could not be differentiated. The Veteran stated that he and his wife had been married for 40 years, but avoided each other and had very little in the way of a relationship. He had recently taken his wife to see her father, but returned early, apparently without her. He spent time during the day caring for his dogs. He ate when hungry, preparing his own meals. He shopped for groceries, and his wife did other household chores. Otherwise, the Veteran occupied his time watching TV. His children lived out of state and occasionally visited, although he stated that he often didn't have much to say. He had one friend who stopped by occasionally, but described himself as a "loner" and stated that he did not like crowds. He was unemployed, and noted that he had received SSA disability benefits because of his physical disability. He did not recall his PTSD symptoms interfering much with his occupation. He reported that his psychiatric medications sustained him, and kept his mood from getting "too low." He had no plans to commit suicide because he did not want his children to dislike him more than they already did. During periods of increased depression, nobody wanted to be around him, and he did not care to be around anyone else. He had nightmares on a nightly basis, as well as frequent intrusive thoughts. He mentioned vague auditory hallucinations during stress. He often walked the perimeter of his property with a gun. He did not like crowds and had an increased startle response. He was uninterested in all previously enjoyable activities. He used alcohol and other illegal substances, although he had no legal problems and did not get into fights. A mental status examination was essentially normal. The examiner found that the Veteran's symptoms most closely approximated occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood. A GAF score of 46 for PTSD was assigned on the basis of the Veteran's "serious" occupational and social impairment; however, the examiner did note that the Veteran had one friend, and was still with his wife although their relationship was strained. The Veteran had also had a history of previous occupational functioning until physical issues precluded employment. The examiner stated that he had reviewed the September 2011 clinical note regarding the Veteran's unemployability, but stated that the Veteran did not meet the criteria for a 100 percent disability rating for PTSD. The examiner did not otherwise comment on whether the Veteran's PTSD symptoms prevented him from obtaining and maintaining substantially gainful employment. In March 2012, the Veteran stated that increased psychiatric medication had improved his mood, but not his sleep. He was getting along somewhat better with his wife, and a nephew had moved into the house. Both the Veteran and his wife were stressed over their financial situation. The Veteran still had "longish" hair and a mustache, and his grooming was described as "casual but improved." He had gained approximately 20 pounds and was eating much better. He was still speaking in monotone and had mild unexplained tremor in his arms. A GAF of 50 was assigned. In July 2012, the Veteran reported that he had run out of his psychiatric medication, and his involuntary arm movement had ceased. He did not notice any difference in his mood, and described himself as "just as depressed as ever." Xanax helped him to sleep, although he still had nightmares, and improved his irritability. He was attired casually with "adequate" grooming. He had gained weight, which was attributed to his psychiatric medication. He spoke in a monotone voice. A GAF score of 50 was assigned. In September 2012, the Veteran noted that he had recently been taken off his pain medication after failing a drug screen. He had had a severe flashback and awoke in the woods, dressed in pajamas, with a knife in his hand. He did not recall how he got there. He denied suicidal intent. His other symptoms were essentially unchanged. The Veteran stated that his daughters called to check on him, and in fact one called during the interview. A GAF score of 50 was assigned. In December 2012, the Veteran's son-in-law submitted a statement, indicating that the Veteran had admitted to suicidal ideation. He had an "obsession" with firearms and talked incoherently at times. He was often tearful and stated that he deserved to die as a result of his actions in Vietnam. His daughters also submitted statements describing their observations of similar symptoms. In January 2013, the Veteran stated that his symptoms were worsening. He had continued thoughts about whether life was worth living, and had utilized a crisis hotline to help him. His relationship with his wife was like living with a roommate, although they had decided they were unable to afford a divorce. He appreciated what his wife had done for him and stated that she still had care and concern for him. A GAF score of 50 was assigned. On review, the Board finds that a rating of 70 percent for PTSD since April 15, 2010, is warranted. On that date, the Veteran presented for VA clinical treatment in a disheveled state, reporting that his depression had worsened to the point where he could hardly get out of bed, and that he was often tearful. Although he had hoped to be rehired by his former employer, it seemed that he would not be offered his job back, and this was contributing to the exacerbation of the Veteran's symptoms. His symptoms increased in severity with each subsequent clinical evaluation. Notably, during his September 2010 hearing, the Veteran credibly testified as to suicidal ideation, obsessional rituals, and near-continuous panic and depression that affected his ability to function in an occupational or social environment. His daughters submitted statements corroborating the Veteran's accounts. In September 2011, the Veteran's treating VA physician stated that, in her professional opinion, the Veteran's PTSD symptoms were so severe that they prevented him from maintaining employment. The Veteran was also observed to have inadequate hygiene and grooming. During that evaluation and in each evaluation after that, he spoke in a monotone. His mood improved only when higher doses of antidepressants were prescribed, but soon reverted back to continuous depression. The Veteran relied on prescription medication and illegal substances to help him sleep, and to abate the frequency of his nightmares. His behavior became increasingly erratic, as he was roaming his yard with weapons and on one occasion awoke outside with a knife in his hand, with no idea of how he got there. During a VA examination in January 2012, the examiner felt that the Veteran's symptoms most closely approximated the criteria for a 70 percent disability rating, noting that the Veteran had one friend, a relationship with his wife (though strained), and a history of occupational functioning which had been precluded by physical disability. A GAF score of 46, reflective of serious symptoms, was assigned for the Veteran's PTSD. In January 2013 statements, the Veteran's family members described frequent episodes of crying, an inability to maintain proper nutrition, and an "obsession" with firearms. Although had previously denied suicidal ideation to his clinicians, all of his family members stated their belief that the Veteran was, in fact, suicidal, as he had made statements regarding suicide to them on many occasions, and had called the VA crisis hotline. In January 2013, the Veteran admitted to calling the hotline, which was the only time during clinical evaluations that he admitted to an intent to commit suicide. His GAF scores since April 15, 2010 never rose above 50, and are indicative of serious symptoms. In addition to the medical evidence, the Board has considered the statements from the Veteran's family members in support of his claim. They all speak to episodes of illogical behavior, obsession with firearms, suicidal ideation, continuous depression affecting the Veteran's ability to function independently, an inability to maintain proper nutrition, and other symptoms indicative of disability meeting the criteria for a 70 percent disability evaluation. The Veteran's family members are competent, as laypersons, to report on that as to which they have personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). As their allegations are uncontradicted, even by medical findings of record, the Board finds them to be credible and probative. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Rucker v. Brown, 10 Vet. App. 67 (1997) (indicating that competency to make these proclamations must be distinguished from the weight and credibility of his lay testimony, which are factual determinations going to the ultimate probative value of this evidence). Since April 15, 2010, the Veteran has exhibited the frequency and severity of symptoms required for a higher rating of 70 percent, but not for an even higher 100 percent rating, the highest possible. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding that the factors listed in the rating formula are examples of conditions that warrant a particular rating and are used to help differentiate between the different evaluation levels). Although the Veteran's treating physician has found that the Veteran is unemployable as a result of his PTSD, his symptoms do not cause total social impairment, as the Veteran maintains relationships with his family members and ventures out into the community to engage in grocery shopping. To the extent that his PTSD and associated symptoms impair or hinder the types of employment he can successfully maintain or undertake, his 70 percent rating is recognition of this. 38 C.F.R. § 4.1. The Veteran's symptoms are also not analogous to the grossly dissociative symptoms described in the criteria for a 100 percent disability evaluation. Thus, a 70 percent rating, as opposed to the maximum 100 percent rating, is the most appropriate under 38 C.F.R. § 4.130, DC 9411, for the period since April 15, 2010. Additional Considerations The above determinations are based upon consideration of applicable rating provisions. There is no showing that the Veteran's PTSD reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). As set forth above, the Board has applied staged ratings in this case to adequately contemplate the Veteran's PTSD disability picture during the pendency of this appeal. Additionally, the assignment of each rating for the above-specified period adequately contemplates the Veteran's occupational and social impairment. Additionally, the evidence fails to demonstrate total occupational and social impairment during any period of the appeal. The Board also points out that although the Veteran no longer worked after December 2009, it appears that physical constraints and economic factors played a larger role in his unemployment prior to April 15, 2010. As will be discussed in greater detail below however, since April 15, 2010, the Veteran's PTSD symptoms were of such severity that a TDIU is warranted. As a result, the Board finds that the symptoms of the Veteran's PTSD have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16. TDIU TDIU is established where a veteran is unable to obtain or retain substantially gainful employment due to service connected disabilities. Threshold entitlement to the benefit is shown where a veteran is rated at least 60 percent disabled due to a single service connected disability, or has multiple service connected disabilities combining to at least a 70 percent evaluation, where one disability is rated at least 40 percent disabling. 38 C.F.R. § 4.16. Prior to April 15, 2010 Prior to April 15, 2010, service connection was in effect for a single service-connected disability, PTSD, at 50 percent disabling. Thus, the schedular criteria for a TDIU were not met. Notwithstanding, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), as here, an extra-schedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Therefore, the Board must evaluate whether there are circumstances in the appellant's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based upon individual unemployability, due solely to the Veteran's service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). To warrant referral for extraschedular consideration, it is necessary that the record reflect some factor which takes the claimant's case outside the norm of other such veterans. 38 C.F.R. §§ 4.1, 4.15. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The assignment of a rating evaluation is itself recognition of industrial impairment. Therefore, the question presented is whether the claimant is capable of performing the physical and mental acts required by employment. See Van Hoose, supra. The evidence does not reflect that the Veteran was incapable of maintaining substantially gainful employment solely as a result of his PTSD symptoms prior to April 15, 2010. Until December 2009, he was employed full-time. His boss and co-workers accommodated his PTSD symptoms. He was laid off, apparently due to economic factors, from January 2009 to May 2009, but was rehired at 50 hours per week. He was laid off again in December 2009, but hoped for rehire. He attributed his unemployability to physical limitations, economic factors, and PTSD. Prior to April 15, 2010, a TDIU under the provisions of 38 C.F.R. § 4.16(b) is not warranted. The Veteran's service-connected disability alone do not render him unable to secure and to follow a substantially gainful occupation, nor does the evidence suggest that this case presents such a disability picture so as to warrant extraschedular consideration. There is no basis for referral of this case to the Director of the Compensation and Pension Service for extraschedular consideration. Prior to April 15, 2010, a TDIU is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 54-58 (1990). Since April 15, 2010 The Veteran is entitled to a 70 percent disability rating from April 15, 2010, as a result of his service connected PTSD, and therefore meets the schedular eligibility threshold as of that date. Id. Consequently, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment. Van Hoose, supra. An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. While the Veteran has retained some minimal functional capacity, enabling him to care for himself, shop for groceries and interact with family members, he describes himself as a loner and has no real contacts in the community. His depression is so pervasive that he is unable to get out of bed or feed himself during depressive episodes. He has intermittently displayed inadequate grooming and hygiene. He has lost a considerable amount of weight as a result of poor nutrition. Hearing testimony and statements submitted by the Veteran's family members document, obsessive and illogical behavior, constant depression, chronic sleep impairment and frequent suicidal ideation. In September 2011, the Veteran's VA clinician stated categorically that the Veteran is unable to maintain substantially gainful employment as a result of PTSD. In January 2012, a VA examiner found that the Veteran was capable of employment, since his symptoms did not meet the criteria for a disability evaluation of 100 percent for PTSD. However, because the examiner did not provide an opinion as to whether the Veteran's PTSD symptoms prevent him from obtaining and maintaining substantially gainful employment, the opinion is of little probative value. Additionally, in April 2013, the Veteran's physician wrote that the Veteran was unemployable due to this service-connected PTSD. In reaching this conclusion, the board certified psychiatrist noted the Veteran's symptoms. In short, while the Veteran has demonstrated the ability to perform tasks, the Board cannot conceive of any real world work situation in which the Veteran could reasonably function, given the severity and chronicity of his symptoms. As a result, the evidence at least raises reasonable doubt as to whether the Veteran can engage in substantially gainful employment. When reasonable doubt is resolved in the Veteran's favor, the Board finds that his service-connected PTSD is as likely as not of such severity as to prevent him from securing or following substantially gainful employment. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2010); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, a TDIU is warranted as of April 15, 2010. CONTINUED ON THE NEXT PAGE ORDER An initial disability evaluation in excess of 50 percent for PTSD prior to April 15, 2010, is denied. An initial disability evaluation of 70 percent, but no higher, for PTSD since April 15, 2010, is granted. A TDIU is granted as of April 15, 2010. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs