Citation Nr: 1323645 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 09-27 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a rating in excess of 10 percent for posttraumatic stress disorder (PTSD), prior to March 26, 2010. 2. Entitlement to a rating in excess of 30 percent for PTSD, effective March 26, 2010. 3. Entitlement to a total rating due to individual unemployability (TDIU) caused by his service-connected disabilities. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to January 1972. This matter came to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Regional Office (RO) in Muskogee, Oklahoma. At that time, the RO confirmed and continued the Veteran's 10 percent rating for PTSD. However, in an April 2010 rating action, the RO increased that rating to 30 percent, effective March 26, 2010. In February 2011, during the course of the appeal, the Veteran had a video conference with the undersigned Veterans Law Judge (VLJ). During that video conference and in his claim, received in October 2008, the Veteran raised contentions to the effect that he was unable to work due to his service-connected PTSD. As such, the Board found in May 2011 that the Veteran's claim for an increased rating for his service-connected PTSD included a claim of entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam). Therefore, the Board has jurisdiction to consider that claim and will do so below. 38 U.S.C.A. § 7104(a) (West 2002 and Supp. 2012); 38 C.F.R. § 20.101 (2012). The Veteran's claim was remanded by the Board for further development in May 2011. That development having been completed, the appeal is now properly before the Board for adjudication. FINDINGS OF FACT 1. Prior to March 26, 2010, the Veteran's PTSD was manifested by mild and transient symptoms, to include sleep difficulty, sadness, depression, and low energy. His disability was not manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, suspiciousness, or memory loss. 2. From March 26, 2010, the Veteran's PTSD was manifested by intermittent periods of inability to perform occupational tasks due to PTSD symptoms, but with generally satisfactory functioning. PTSD symptoms did not cause reduced reliability and productivity, deficiencies in judgment, thinking, family relations, or work, and the Veteran's disability did not result in total occupational and social impairment. 3. The Veteran is currently service-connected for two disabilities: PTSD evaluated as 30 percent disabling, and diabetes mellitus evaluated as 10 percent disabling, for a combined evaluation of 40 percent. 4. The Veteran does not meet the schedular requirements of 38 C.F.R. § 4.16(a) for the rating of his disabilities. 5. The competent and credible evidence fails to establish that the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to March 26, 2010, the criteria for an evaluation in excess of 10 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. From March 26, 2010, the criteria for an evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2012). 3. The criteria for entitlement to a TDIU rating are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the issue, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified in September 2008 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. This letter accordingly addressed all notice elements and predated the initial adjudication by the RO in December 2008. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Nothing more is required in this case. As for the duty to assist, the Veteran's service treatment records have been obtained. Pertinent post-service medical records have been obtained, to the extent available. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Following a May 2011 Board remand, the Veteran was provided the requisite form so as to allow VA to obtain information from former employers to assist him in the development of his TDIU claim. However, the Veteran did not respond to this request. The Board notes that, while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). As to other potentially-applicable records, the Board requested all records from the Social Security Administration, as the Veteran testified in February 2011 that he was in receipt of SSA disability due to his psychiatric disability. However, in May 2011, SSA indicated that no medical records were available. The Board therefore finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding, and the duty to assist requirement has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). Here, following a May 2011 Board remand, the Veteran was most recently afforded a VA examination to address his claim in June 2011. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination report is adequate to decide the claim addressed in this section, as the examination report included a thorough review of the file, as well as examination findings relevant to the issue at hand. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased Rating The Veteran claims that his currently service-connected PTSD is more severe than indicated by his current disability rating of 10 percent, prior to March 26, 2010, and of 30 percent thereafter. The Board points out that disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2012). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. In this case, the evidence of record establishes two distinct time periods (prior to, to March 26, 2010, and thereafter) in which the issue on appeal resulted in symptoms that warrant a staged rating. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2012). However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). Assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case," Butts v. Brown, 5 Vet. App. 532, 538 (1993), and one Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must, however, be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). 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, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's disability has been assigned an evaluation of 10 percent, prior to March 26, 2010, and an evaluation of 30 percent thereafter, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). The provisions of 38 C.F.R. § 4.130 relating to rating psychiatric disabilities read in pertinent part as follows: Under this schedule, a 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during period of significant stress, or, where symptoms controlled by continuous medication. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating provides for 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. A 70 percent rating is provided for 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); inability to establish and maintain effective relationships. A 100 percent rating is provided for 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. See 38 C.F.R. § 4.130 (2012). The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. The Board notes that a Global Assessment of Functioning (GAF) rating 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. 1994). With regard to GAF scores, scores ranging from 51 to 60 reflect 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). Scores ranging from 41 to 50 reflect 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). Scores ranging from 31 to 40 reflect 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 other children, is defiant at home, and is failing at school). See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes). In this case, the Veteran has been afforded three VA psychiatric examinations during the appellate period at issue. In July 2008, the Veteran reported sleep difficulty and recurrent "memories." The examiner pointed out that the Veteran also carried a diagnosis of depression, due to which he experienced sadness, depression, frequent crying spells, low energy, and occasional passive suicidal thoughts, the most recent of which was one month prior. The examiner also noted that the Veteran was not a reliable historian, as evidenced by a plethora of inconsistencies in his clinical history. The Veteran noted that his relationship with his siblings was good. While he was not married, the Veteran did have a "significant other" of five years, and that the relationship was "up and down." He further stated that his relationship with his children was good. He did not report any major changes in social function since he developed his mental disorder. He indicated that he was not working, and had not been working for more than a year due to medical problems. He was employed as a construction laborer for six years. On examination, orientation was within normal limits. Appearance and hygiene were appropriate, as was behavior. Affect and mood were normal, as was communication, speech, and concentration. Panic attacks were absent, there was no suspiciousness, delusions (reported or observed), or hallucinations. Obsessional rituals were absent. Thought processes were appropriate and judgment was not impaired. Abstract thinking was normal, as was memory. Suicidal ideation was absent, as was homicidal ideation. The Veteran reported casually dressed, appeared slightly nervous, and was cooperative with the examination. Ultimately, he was diagnosed with PTSD and assigned a GAF score of 65. It was noted that the inconsistencies in the Veteran's history included details pertaining to his medical history, employment history, his infractions in the military, and his legal history. His psychiatric symptoms were described as mild and transient, causing significant occupational stress. The Veteran did not appear to pose any threat of danger or injury to himself or others. In March 26, 2010, the VA examiner noted that the Veteran was using an anti-depressant and an anti-anxiety medication to control his psychiatric symptoms. At the time of the interview, he was casually dressed. His psychomotor activity was unremarkable, as was his speech. He was cooperative, his affect was constricted, and his mood was depressed. He reported that he did not have any close friends, and that he stayed at home with his mother and brother. He noted that he was close with his family and children. Though he would get upset over little things, he was not physically aggressive. He was oriented to person, place, and time, and his thought process and content was unremarkable. He did not report any delusions or hallucinations, his judgment was not impaired, and his insight was good. His behavior was appropriate, and no ritualistic or obsessive behavior was identified. He reported panic attacks that lasted about 5-10 minutes, though there were no homicidal or suicidal thoughts. His impulse control was good. Remote memory was normal, and recent memory was mildly impaired. Immediate memory was normal. Other symptoms included recurrent, intrusive, and distressing recollections of events, avoidance behavior, increased arousal, irritability, difficulty concentrating, hypervigilance, and exaggerated startle response. Overall, the examiner described the Veteran's PTSD symptoms as ongoing and moderate. The Veteran indicated that he was retired from his construction job due to arthritis and carpal tunnel syndrome. His PTSD diagnosis was confirmed, and his GAF score was between 55-60. The Veteran was most recently afforded a VA examination, subsequent to a May 2011 Board remand, in June 2011. While outpatient treatment was ongoing, it was noted that the Veteran's disability did not require any hospitalization. At the time of the interview, the Veteran was still in a relationship, though unmarried. He still lived with his mother and brother, and each of those three relationships was good. His relationship with his daughter was distant, and he denied having any outside friendships. There was no history of homicide or suicide attempts, nor of violence. He did not seek out interactions with others, and social withdrawal and isolation were noted. As for social functioning, he reported that he avoided people due to issues with anger and irritability, such as road rage. None of these had resulted in physical violence. He indicated that, some days, he did not leave the house. Regarding employment, he stated that he was still unemployed, and that his work triggered memories of trauma due to the diesel smell of the equipment he operated in service. On examination, he was clean and appropriately dressed. Psychomotor activity and speech were unremarkable. He was cooperative, his affect was appropriate, and his mood was depressed. He was oriented to person, place, and time, and his thought process and content were unremarkable. No delusions or hallucinations were reported or observed. He did report sleep difficulty and associated nightmares. He was hypervigilant, though he denied panic attacks as well as homicidal thoughts. He indicated fleeting suicidal thoughts with no intent or plan. Obsessive behavior was reported, though this was related to his hypervigilance (checking doors and windows frequently). His immediate and recent memory were mildly impaired, and his remote memory was normal. He also reported difficulty with attention and concentration. PTSD-specific symptoms included persistent re-experiencing of traumatic events, avoidance of stimuli, flashbacks, and increased arousal (difficulty falling asleep). He stated that these symptoms were experienced weekly, and were moderate in severity. However, he was unable to provide a specific example for many of these symptoms. For example, he reported flashbacks, but was unable to describe one. As such, the examiner found that the validity of the testing was questionable. A GAF of 57 was assigned, but the examiner again noted that these results were probably invalid. A GAF of 52 was assigned as well, though this was secondary to medical issues, and not to PTSD. It was also noted that his symptomatology was purposefully over-reported, and thus his current symptoms could not be reliably assessed. The examiner determined that there were intermittent periods of inability to perform occupational tasks due to PTSD symptoms, but with generally satisfactory functioning. The examiner further noted that PTSD symptoms did not cause reduced reliability and productivity, deficiencies in judgment, thinking, family relations, or work, and that the Veteran's disability did not result in total occupational and social impairment. The Board has also reviewed the Veteran's outpatient reports, to include those reports which recommended an increase in psychiatric medication to control the Veteran's symptoms, as well as those which assigned GAF scores of 56 and 57. The Veteran testified before the undersigned during a Board hearing held in February 2011. At that time, he indicated that he was experiencing outbursts of anger, and that this prompted him to go to VA and increase his psychiatric medication. He further noted that he experienced an anxiety attack three or four days out of the week. He also reported flashbacks and intrusive thoughts, and stated that his PTSD symptomatology was more severe, prior to May 2010, than his 10 percent rating would suggest. Taking this evidence into account, prior to March 26, 2010, the criteria for an evaluation in excess of 10 percent have not been met. First, occupational impairment with intermittent periods of inability to perform occupational tasks was not demonstrated. Instead, the Veteran attributed his lack of employment to medical issues, and not to his psychiatric disability. Further, he did not report any major changes in social function since he developed his mental disorder, and he maintained good relationships with his family members. His psychiatric symptoms were described as mild and transient, which is supported by the GAF score of 65, and symptoms such as suspiciousness and panic attacks were not present. While sleep impairment was noted, memory was normal and judgment was not impaired. While the Veteran stated that he had the occasional, fleeting suicidal thought with no intent or plan, suicidal ideation was not present when he was examined. During the examination, he was appropriately dressed with good hygiene, and he was cooperative with normal mood and affect. As such, these symptoms are certainly indicative of a 10 percent rating, based on occupational and social impairment due to mild or transient symptoms which decrease work efficiency, coupled with the inability to perform occupational tasks only during periods of significant stress, with symptoms controlled by continuous medication. However, the criteria for a higher evaluation were not met during this period. From March 26, 2010, the evidence of record does not support an evaluation in excess of 30 percent at this time. At the time of the most recent examination, the examiner determined that there were intermittent periods of inability to perform occupational tasks due to PTSD symptoms, but with generally satisfactory functioning. The examiner further noted that PTSD symptoms did not cause reduced reliability and productivity, deficiencies in judgment, thinking, family relations, or work, and that the Veteran's disability did not result in total occupational and social impairment. Although the Veteran stated that he was not working because diesel fumes reminded him of his period of service, this was a much different explanation than prior examinations. In March 2010, the Veteran indicated that he was retired from his construction job due to arthritis and carpal tunnel syndrome Turning to his PTSD symptomatology, it was noted in June 2011 that he was unable to provide a specific example for many of his claimed symptoms, and that his symptomatology was purposefully over-reported. As such, his current symptoms could not be reliably assessed. However, even taking the Veteran's own report into account, he denied panic attacks as well as homicidal thoughts. He indicated fleeting suicidal thoughts with no intent or plan. Though obsessive behavior was reported, he indicated that his symptoms were moderate in severity. The GAF score of 57 was assigned, but the examiner again noted that these results were probably invalid. Even taking this into account, scores ranging from 51 to 60 reflect only moderate symptoms and moderate difficulty in social and occupational functioning. Symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; and disturbances of motivation and mood were not demonstrated during this period. Therefore, an evaluation in excess of 30 percent is not warranted from March 26, 2010. In reaching the above conclusions, the Board has not overlooked the Veteran's statements regarding the severity of his service-connected psychiatric symptoms. In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g., experiencing an increased level of psychiatric symptomatology. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Board finds the objective medical findings and opinions provided by the VA examiners of record are afforded the greater probative weight. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The above determination is based upon consideration of applicable rating provisions. It should also be noted that there is no showing that the Veteran's disability has 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) (2012). As addressed in further detail below, the symptoms of his disability have been accurately reflected by the schedular criteria. Further, the Board points out that his disability rating encompasses a degree of occupational impairment relative to that rating. For example, the Veteran's current 30 percent rating reflects occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 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 extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In light of the foregoing, the Board finds that the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Therefore, the preponderance is against the Veteran's claims for entitlement to evaluations in excess of 10 percent prior to March 26, 2010, and of 30 percent thereafter, and the claims must be denied. III. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities 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. Total disability ratings 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, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). 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 nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this instance, service connection has been established for two disabilities: PTSD evaluated as 30 percent disabling, and diabetes mellitus evaluated as 10 percent disabling, for a combined evaluation of 40 percent. Although the Veteran's service-connected disabilities do not meet the threshold percentage requirement to establish eligibility for TDIU pursuant to 38 C.F.R. § 4.16(a), it must still be determined whether his service-connected disabilities preclude him from engaging in substantially gainful employment on an extra-schedular basis. See 38 C.F.R. § 4.16(b). Under this regulation, Veterans who are unable to secure gainful employment by reason of service-connected disabilities, but fail to meet the criteria in 38 C.F.R. § 4.16(a), may receive extraschedular consideration under 38 C.F.R. § 4.16(b). Specifically, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board will include a full statement as the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). In order to grant TDIU on an extra-schedular basis, the record must reflect that circumstances, apart from nonservice-connected conditions, place the Veteran in a different position than other veterans having the same compensation rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disability, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court discussed the meaning of "substantially gainful employment," in part, by noting the following standard announced by the United States Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Id. A veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the Veteran. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2011). As the Board itself cannot assign an extra-schedular rating, including on the basis of TDIU, in the first instance; it must first specifically determine whether to refer a case to the Director of C&P Service for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. 38 C.F.R. § 4.16(b); See also Thun; Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extra-schedular evaluation is not warranted, does the Board then have jurisdiction to decide the extra-schedular claim on the merits. In this case, the Veteran contends that he is entitled to a TDIU rating, as his service-connected disabilities render him unemployable. A completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), has not been associated with the file, and therefore the Board is unable to fully determine the Veteran's educational and occupational history. According to the record, the Veteran has a high school education and has worked as a brick layer and construction laborer. Turning to the medical evidence of record, the Veteran was afforded four VA psychiatric examinations since his first service connection claim was filed. In May 2007, the examiner noted that the Veteran had no difficulty understanding commands, thought processes were appropriate, judgment was not impaired, abstract thinking and memory were normal, and he did not report any issues with employers, noting that relationships with supervisors and co-workers were good. He noted that he worked in construction for five years, and as a bricklayer for two years. In July 2008, he indicated that he was not working, and had not been working for more than a year due to [non-psychiatric] medical problems. In March 2010, the Veteran indicated that he was retired from his construction job due to arthritis and carpal tunnel syndrome. In June 2011, although the Veteran claimed to be unemployed due to PTSD symptoms, the examiner determined that there were intermittent periods of inability to perform occupational tasks due to PTSD symptoms, but with generally satisfactory functioning. The examiner further noted that PTSD symptoms did not cause reduced reliability and productivity, deficiencies in judgment, thinking, family relations, or work, and that the Veteran's disability did not result in total occupational impairment. The Veteran was afforded a VA examination in connection with his service-connected diabetes in May 2011. At that time, the Veteran reported that he was not employed due to his depression. Regarding diabetes, the examiner determined that the Veteran did not carry a diagnosis for that disorder, and as such the Board concludes that such disorder could not cause or contribute to unemployability. The Board has also reviewed the Veteran's VA outpatient treatment reports. However, these reports to not demonstrate that either disorder is more severe than contemplated by any VA examination of record. Further, these reports are silent for any opinion that the Veteran's service-connected disorders hinder the Veteran from securing and maintaining substantially gainful employment. In recognition of the severity of and impairment caused by his service-connected disabilities, the Veteran is currently rated as a combined 40 percent disabled. However, based on the evidence discussed above, the Board finds that a preponderance of the evidence of record does not demonstrate that the Veteran's service-connected disabilities alone actually preclude him from engaging in substantially-gainful employment. Indeed, the Board has acknowledged that the Veteran's disabilities, especially his psychiatric disorders, may impede his performance as a construction worker (due to a decreased ability to adapt to work situations). However, it has not been demonstrated that he no longer possesses the requisite ability to engage in physical labor, and therefore his service-connected disabilities do not negate the possibility of gainful employment in his trade, or in a more isolated occupation. As such, entitlement to a TDIU rating due to the Veteran's service-connected disabilities is not warranted in this instance. The Board acknowledges the Veteran's assertions that he is unable to work due to his service-connected disabilities, and must analyze the competency, credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); 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. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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"). In this case, the Veteran is competent to report symptoms such as depression and diabetic symptoms, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Although his statements are competent, they are nonetheless inconsistent with the most probative evidence of record, which does not show the Veteran is unemployable solely due to his service-connected disabilities. As such, the Board finds that his assertions of unemployability are outweighed by the medical evidence of record, which indicates that his service-connected disabilities do not preclude him from obtaining substantially gainful employment due to functional impairment. Further, due to numerous inconsistencies within the record, as well as over-reporting of PTSD symptomatology which has been noted by more than one examiner, the Board has not deemed the Veteran's statements credible. Again, the most probative evidence of record outweighs the Veteran's assertions that his service-connected disabilities preclude the Veteran from securing and maintaining substantially gainful employment. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). It is clear that, during the pendency of this appeal, the Veteran has experienced some occupational impairment. However, the record does not indicate that his occupational difficulties are solely the result of his service-connected disabilities. Further, the record is negative for medical evidence to show that the Veteran is incapable of performing all forms of work due to his service-connected disabilities. No persuasive, competent medical evidence is of record to demonstrate that he is unable to obtain and/or maintain all forms of substantially gainful employment due to his service-connected disabilities alone. Additionally, the Board finds that the record does not present any unusual factors, such as frequent periods of hospitalization or marked interference with employment, which might serve as a predicate for a finding of unemployability. The Veteran's service-connected disabilities have not been, in the Board's determination, so severely disabling as to have rendered him or the average person similarly situated unable to secure or follow substantially gainful employment, nor does the medical evidence of record reflect that any of his service-connected conditions would render him individually unable to follow any substantially gainful occupation. As such, referral for extra-schedular consideration for a TDIU pursuant to 38 C.F.R. § 4.16(b) is not warranted. While the Board is sympathetic to the Veteran, and regrets his current condition, unfortunately the claim for entitlement to a TDIU rating must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As such, the appeal is denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 10 percent for PTSD, prior to March 26, 2010, is denied. Entitlement to a rating in excess of 30 percent for PTSD, from March 26, 2010, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs