Citation Nr: 1324496 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 07-24 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an increased disability rating (evaluation) in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to January 9, 2010. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 1966 to July 1970, and from February 1971 to December 1973. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which denied an increased rating in excess of 50 percent for PTSD and denied a TDIU. The Veteran testified at July 2009 Board personal hearing in Hartford, Connecticut (Travel Board). The hearing transcript has been associated with the claims file. A January 2013 letter informed the Veteran that the Acting Veterans Law Judge who conducted the hearing is no longer employed at the Board and offered the opportunity for a new Board hearing. In a January 2013 response, the Veteran indicated that he did not wish to appear at an additional Board hearing ,and that he wished to have the case considered on the evidence of record; therefore, the Board finds that there is no hearing request pending at this time. The Board previously remanded the case in January 2010. The January 2010 Board remand directed additional development regarding the issues on appeal that included a request to obtain additional VA treatment records and for an updated VA examination. This was accomplished, and the Board finds that no additional development is necessary in this case. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). In a May 2011 decision, the Board denied an increased rating in excess of 50 percent for PTSD prior to January 9, 2010, but granted an increased 70 percent rating from January 9, 2010. The Board also granted a TDIU from January 9, 2010. The Veteran appealed the May 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court or CAVC). In August 2012, the Court vacated the Board's May 2011 decision in part to the extent that it denied a disability rating for service-connected PTSD in excess of 50 percent prior to January 9, 2010, and denied a TDIU prior to January 9, 2010, and remanded the case to the Board for readjudication in compliance with an August 2012 Joint Motion. Therefore, the issues remaining on appeal are entitlement to an increased rating in excess of 50 percent for PTSD prior to January 9, 2010, and entitlement to a TDIU prior to January 9, 2010. FINDINGS OF FACT 1. For the entire rating period prior to January 9, 2010, the Veteran's PTSD was characterized by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. For the entire rating period prior to January 9, 2010, the Veteran's service-connected disabilities met the combined percentage threshold criteria under 38 C.F.R. § 4.16(a) for a TDIU, and evidence of record established that the Veteran was unable to secure and follow a substantially gainful occupation by reason of the service-connected PTSD. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, for the entire rating period prior to January 9, 2010, the criteria for an increased disability rating of 70 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. Resolving reasonable doubt in the Veteran's favor, for the entire rating period prior to January 9, 2010, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.3, 4.7, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). With regard to entitlement to a TDIU, because this decision constitutes a full grant of the benefits sought on appeal, the Board finds that no further action is necessary to comply with VCAA duties to notify and assist the Veteran with respect to that issue. In an October 2006 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for an increased rating, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The notice included information regarding disability ratings and the criteria applicable to the Veteran's increased rating claim. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes VA and private treatment records, SSA medical records, VA examinations, and the Veteran's statements and testimony. During the July 2009 Travel Board hearing, to assist the Veteran, the Acting Veterans Law Judge asked questions to help direct the Veteran's testimony as to the effect of his current symptoms on activities of daily living and as to any worsening of symptoms, addressing specific symptoms. The Acting Veterans Law Judge assured that Social Security records had been obtained, as well as workers' compensation records; asked the Veteran if a doctor had opined that he was unable to work; and advised the Veteran that non-service-connected back disability could not be used as the basis for an opinion of unemployability. These actions fulfilled the duties under 38 C.F.R. § 3.103 (2012). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the relevant period on appeal, the Veteran was afforded a VA examination in November 2006 to evaluate the severity of the PTSD. The Board finds that this examination is adequate for rating purposes because it was performed by a medical professional, and was based on a review of the record and history and symptomatology from the Veteran and a thorough examination of the Veteran. The examiner reported findings pertinent to the rating criteria, offered relevant medical opinions, and provided supporting reasons for the medical opinions offered. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran has not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 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. 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. As the Board will discuss in more detail below, prior to January 9, 2010, an increased 70 percent rating is warranted for PTSD. However, the Board finds that it is not ascertainable, based on the evidence of record, that such an increase in disability occurred in the time period one year before the Veteran's June 8, 2006 claim for increased rating was filed. Prior to January 9, 2010, the Veteran was in receipt of a 50 percent disability rating for PTSD under Diagnostic Code 9411. See 38 C.F.R. § 4.130. Under Diagnostic Codes 9411 (PTSD) a 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent disability rating is assigned 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 that is 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the veteran's own occupation or name. 38 C.F.R. § 4.130. In applying the above criteria, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2012); Mittleider v. West, 11 Vet. App. 181 (1998). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (hereinafter DSM- IV). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. Id. Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100, reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF 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 obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which 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., a depressed patient who avoids friends, neglects family, and is unable to do work). DSM-IV at 46-47. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Increased Rating Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate. As noted in the introduction above, pursuant to an August 2012 Court order and Joint Motion, the rating on appeal for both PTSD and a TDIU has been limited to the increased rating period prior to January 9, 2010, and the appeal as to the remaining issues was dismissed. The August 2012 Joint Motion provided that a remand was necessary in this case so the Board could address evidence of record indicating that the Veteran had a history of suicide attempts prior to January 9, 2010. The Board finds that PTSD did not worsen in severity during the one year period prior to receipt of increased rating claim on June 8, 2006. VA treatment records dated from August 2005 to December 2005 show that the Veteran's psychiatric symptoms were stable. In August 2005, the Veteran denied homicidal or suicidal ideation, and a December 2005 letter from the Veteran's psychiatrist indicates that his mental illness prevented him from rendering jury service. While treatment records dated from August 2005 to December 2005 noted a GAF score of 45, and while the Veteran was deemed unable to render jury service, because a complete psychiatric evaluation or even mental status examination was not completed in conjunction with these treatment reports, is not clear what the basis of the GAF score and medical determination were. A May 2006 treatment noted identified symptoms which included stable mood and sleep disturbance. The Veteran was noted to have support from his immediate and extended family as well as network of friends; however, the physician noted that he seemed emotionally distant from his family. The record shows that in early 2010 the Veteran telephoned the VA National Suicide Prevention Hotline, noting a past suicide attempt nine years prior; however, the Board finds that this suicide attempt would have been in 2001, years prior to the relevant rating period on appeal, and there is no indication that the Veteran had increased psychiatric symptoms, to include suicidal ideation, in the one year period prior to receipt of his increase rating claim in June 2006 as he specifically denied having any suicidal ideation in August 2005. For these reasons, the Board finds that it is not ascertainable based on the evidence of record that an increase in disability occurred in the time period one year before the June 8, 2006 claim for increase was filed. See 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2012) (effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (holding "that an increase in a veteran's service-connected disability must have occurred during the one year prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date"). For these reasons, the Board finds that there is no factual or legal basis for assignment of the 70 percent rating prior to June 8, 2006. The Veteran has been in receipt of a 50 percent rating for service-connected PTSD for the increased rating period from June 8, 2006 to January 9, 2010. After a review of all the evidence, lay and medical, the Board finds that for the rating period prior to January 9, 2010, the psychiatric symptoms due to PTSD and the severity of such more nearly approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to the symptoms described for a 70 percent rating. See 38 C.F.R. § 4.130. For the rating period from June 8, 2006 to January 9, 2010, the Veteran's PTSD has increased in severity and has been characterized by symptoms which include flashbacks, intrusive thoughts, and avoidance of reminders of Vietnam, nightmares, anxiety, sleep disturbance, and irritability and anger outbursts, difficulties with concentration and memory, social avoidance or isolation, depression, hallucinations, paranoia, and suicidal ideation. The Board finds that these symptoms are like or similar to symptoms described for a 70 percent rating for PTSD. For the period prior to January 9, 2010, the Veteran had GAF scores predominantly at 45 which indicate serious PTSD symptoms or serious difficulty in social and occupational functioning consistent with a 70 percent disability rating. The Board finds that, for the rating period prior to January 9, 2010, the Veteran's psychiatric symptoms and the severity of such are consistent with a higher 70 percent rating, taking into account the degree of social and occupational impairment. 38 C.F.R. § 4.130. For the rating period prior to January 9, 2010, the Veteran received mental health treatment at VA and was treated with psychotherapy and medication. A VA treatment report dated in September 2006 and November 2006 letter from the Veteran's treating physician reflect a GAF score of 40; however, mental status examinations were not associated with these reports. A November 2006 VA examination and VA treatment records dated from November 2006 to January 2009, including letters from the Veteran's VA psychiatrists, show that the Veteran has reported symptoms which include flashbacks, intrusive thoughts, and avoidance of reminders of Vietnam, nightmares, anxiety, sleep disturbance, and irritability and anger outbursts, difficulties with concentration and memory, social avoidance or isolation, depression, hallucinations, paranoia, and suicidal ideation with a history of attempt. A November 2006 letter from the Veteran's VA psychiatrist describes a history of employment difficulties due to personal problems with co-workers and supervisors prior to stopping work in 1998 due to a back condition. The VA psychiatrist stated that the Veteran had lifelong employment issues due to PTSD symptoms and that, due to his PTSD and physical condition, he was unemployable. During a November 2006 VA examination, the VA examiner noted that, while recent VA treatment reports indicated that the Veteran's GAF score was 40, treatment notes also showed that his ongoing symptoms were "stable" and did not reflect an increase in psychotic symptoms. During examination, the Veteran described suicidal ideation with no intention or plan. He stated that, at times, he heard voices that told him that he should kill himself, which were worse when he felt depressed. He stated that he also had visions of what would happen in the future, adding that he recently had a premonition that he and his wife would get into a car accident and they did. He reported minor paranoia, feeling that others were looking at him. The Veteran lived with his wife of 25 years in their apartment and traveled to their home in Puerto Rico every few months. He reported a good relationship with his wife, but ongoing difficulties with his daughter. A mental status examination in November 2006 reflects depressed mood, dysphoric affect, suicidal ideation with no intent or plan, and some mild paranoia. The Veteran's thought process was tangential at times and he frequently had to be redirected. He reported auditory hallucinations, but had some insight in to the reality of these experiences. Insight and judgment were fair. The Veteran was diagnosed with PTSD and was assigned a GAF score of 45. The examiner stated that the Veteran presented with chronic symptoms of PTSD that appeared to be similar to those described in his previous VA examination and that the Veteran reported little evidence of the paranoia that was present on his previous VA examination. He continued to have difficulties focusing on his current symptomatology and reported a long history of employment difficulties due to his attitude and behavior. The examiner stated that the Veteran's physical medical status caused him to leave his job in 1998, and that this medical issue would likely be the primary cause for his inability to find employment at the time. The examiner was also noted that the Veteran's long history of difficulties with is PTSD symptoms, particularly his history of irritability and anger outbursts, would likely cause the Veteran to have problems with future employment. A July 2008 depression screen shows that the Veteran had thoughts about taking his life, and that he had a suicide attempt 20 years ago in Puerto Rico. An October 2008 depression screen also shows that the Veteran had thoughts about taking his life, but instead, the Veteran reported a suicide attempt two years prior with an overdose in medications. A GAF score of 45 was noted in conjunction with both of these treatment reports. During a July 2009 Travel Board hearing, the Veteran testified that he stopped working in 1998 due to back problems, but that his current psychiatric problems made him unemployable. He described symptoms which include suicidal ideation, memory problems, and sleep disturbance. He stated that he did not like to socialize and did not like being around people. He stated that he had been married to his current wife for 26 years and that he had a good relationship with the children from his current marriage. He also reported having one close friend whom to called and talked to daily. A May 2009 letter from the Veteran's treating psychiatrist indicates that the Veteran was still unable to sit for jury duty to psychiatric disability. During treatment in August 2009, the Veteran stated that his main issue was his quick anger and losing control when provoked. He recounted two previous incidents when he "went into combat mode" and tried to kill his cousin and his sister. He also reported that he avoided people, crowds, and dealing with authority, and reported having a flashback and panic attack that morning. He denied suicidal or homicidal ideation. A GAF score of 45 was noted. In a November 2009 letter, the Veteran's attending psychiatrist stated that the Veteran could not work due to his physical and mental problems. He identified several PTSD symptoms which included problems with concentration and focus and problems with people in authority. PTSD symptoms were stated to be chronic and severe, and the psychiatrist stated that these physical and mental symptoms made the Veteran unemployable. VA treatment records show that the Veteran called the suicide prevention hotline on January 9, 2010 due to fear related to increased suicidal thinking and feelings of helplessness or hopelessness. He denied any suicidal plan, but did note a previous attempt nine years prior. In a February 2011 Independent Hearing Presentation, the Veteran and his representative identified a suicide attempt in approximately 2009 when the Veteran attempted suicide by overdose, followed by a call to the VA suicide hotline for intervention. The Board finds that, for the period prior to January 9, 2010, the severity of the social and occupational impairment due to psychiatric symptoms, overall, more nearly approximates the criteria for a 70 percent rating for PTSD. For the rating period prior to January 9, 2010, the Veteran has consistently identified symptoms of flashbacks, intrusive thoughts, and avoidance of reminders of Vietnam, nightmares, anxiety, sleep disturbance, and irritability and anger outbursts, difficulties with concentration and memory, social avoidance or isolation, depression, hallucinations, paranoia, and suicidal ideation and a history of attempts in lay statements and testimony, and during the course of his treatment and during a VA examination. The Board finds that for the period prior to January 9, 2010 the record reflects symptoms of suicidal ideation; however, there are inconsistencies with respect to the Veteran's reported history of suicide attempts. In that regard, the Veteran has noted a past suicide attempt occurring more remotely either 20 years prior, reported in July 2008, or nine years prior, reported in January 2010. While a more recent attempt was reported by the Veteran during an October 2008 depression screen, significantly, an earlier July 2008 depression screen did not note an attempt two years prior, but instead identified an attempt occurring 20 years prior. The Veteran was receiving VA mental health treatment in 2006; however, VA treatment records do note any suicide attempts in 2006. Based on these discrepancies the Board finds that the Veteran has not provided a credible or accurate history with regard to an October 2008 report of a suicide attempt that allegedly occurred in approximately 2006. While the Veteran reported suicidal thoughts with no suicidal plan during a January 2010 call to the VA suicide hotline, in a later statement made in conjunction with a February 2011 Independent Hearing Presentation, the Veteran alleged to an attempted suicide by overdose, but identified the attempt as being in 2009 with a subsequent call to the VA suicide hotline, while the record shows that this call was made in January 2010. Based on the many inconsistencies or inaccuracies shown in the Veteran's reported history of suicide attempts, the Board finds that while the Veteran is credible in reporting a history past suicide attempts, he has not been credible or accurate in identifying the time frame for such attempts. The Board finds, nonetheless, that the Veteran has credibly identified significant symptoms of suicidal ideation with a history of attempts, and the Board finds overall, that PTSD symptoms exhibited by the Veteran are like, or similar to symptoms described for a 70 percent rating in their severity, and affect the Veteran's functioning in most areas such as work, family relations, judgment, thinking, and mood. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board finds that, for the period prior to January 9, 2010, the severity of the Veteran's psychiatric symptoms, overall, is consistent with a 70 percent rating. Under the DSM-IV at 46-47, a GAF score of 45 is indicative of major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. VA treatment records reflect a current GAF score predominantly at 45, and this is consistent with the GAF score assessed during a November 2006 VA examination. While an earlier GAF score of 40 was noted in a September 2006 treatment report and in a November 2006 letter from the Veteran's VA psychiatrist, mental status examinations were not associated with these evaluations, and the treatment reports do not clearly identify the basis for the assignment of a higher GAF score. For these reasons, in assessing the severity of the Veteran's PTSD, the Board has accorded more probative weight to the GAF score rendered by the November 2006 VA examiner as it was based on a full psychiatric evaluation of the Veteran which included a mental status examination. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion"). Resolving doubt in favor of the Veteran, the Board finds that, prior to January 9, 2010, the severity of the Veteran's occupational and social impairment and symptoms due to his service-connected PTSD are consistent with a higher 70 percent disability rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Based on the foregoing, the Board finds that, for the rating period prior to January 9, 2010, the Veteran's PTSD has been characterized by deficiencies in most areas, including work, family relations, judgment, thinking, and mood based on the aforementioned psychiatric symptoms, more nearly approximating a 70 percent rating under Diagnostic Code 9411. The Board has reviewed all the evidence of record, lay and medical, and finds that prior to January 9, 2010, the evidence has not met or more nearly approximated the criteria for a higher 100 percent disability rating for PTSD. See 38 C.F.R. § 4.130. The record does not indicate total occupational and social impairment, due to symptoms of such a severity as described for a 100 percent evaluation for PTSD. The November 2006 VA examiner assessed that PTSD would likely cause the Veteran to have problems with future employment; however, the Board finds that this is not analogous to total occupational and social impairment. While letters from the Veteran's VA treating physicians show that the Veteran has occupational impairment to his psychiatric symptoms, he is not shown to have total social impairment and testified in July 2009 that he maintained a 26 year relationship with his wife, had a good relationship with the children from his current marriage, and he had one close friend whom to called and talked to daily. For these reasons, the Board finds that the Veteran's overall psychiatric presentation was not of a severity as described for a 100 percent rating. Aside from auditory hallucinations, the Veteran does not exhibit symptomatology described for a 100 percent rating (i.e., gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name). As noted above, the Veteran has identified a more remote history of suicide attempts prior to the increased rating period, and while he identified another attempt around 2006, due to inconsistencies shown in the Veteran's reports, the Board finds that he has not been credible in identifying the occurrence of such an attempt during the rating period. The Board finds that the Veteran has credibly reported an attempt by overdose occurring around the time he called the VA suicide hotline in January 2010. Despite this, the Board finds that the Veteran is not in persistent danger of hurting self or others, has reported suicidal ideation without plan or intent during the course of his mental health treatment, and has not received inpatient treatment or hospitalization during the relevant increased rating period as a result of suicidal ideation or attempt. While the Veteran reported that he almost killed his cousin and sister upon his return from Vietnam, the Board finds that the Veteran has not more recently shown that he is in persistent danger of hurting others. During July 2009 hearing testimony, the Veteran described concerns about accidentally hurting his wife or his daughter when he was dreaming, or reacting when caught by surprise, but the Board finds that these reactions do not approximate a persistent danger of hurting self or others. Prior to January 9, 2010, the Board finds that the degree of severity of the Veteran's psychiatric symptoms or functional impairment as reflected by his GAF scores which were predominantly assessed at 45, is not consistent with a 100 percent rating for PTSD, and more closely approximates a level of functional impairment congruent with a 70 percent rating for PTSD. During the relevant increased rating period on appeal prior to January 9, 2010, the Board finds that PTSD does not more nearly approximate the rating criteria for a 100 percent evaluation under Diagnostic Code 9411. The Board finds that, for the entire rating period prior to January 9, 2010, the Veteran's PTSD symptoms, though severe in degree, are not of the severity indicated for a 100 percent rating for PTSD. The Board finds that, for the period prior to January 9, 2010, the severity of the Veteran's PTSD and related symptomatology more closely approximates a 70 percent rating. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. 3.321(b)(1). Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's PTSD is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9411 specifically provides for disability ratings based on a combination of clinical psychiatric symptoms and findings. In this case, the Veteran's PTSD is manifested by symptoms of flashbacks, intrusive thoughts, and avoidance of reminders of Vietnam, nightmares, anxiety, sleep disturbance, and irritability and anger outbursts, difficulties with concentration and memory, social avoidance or isolation, depression, hallucinations, paranoia, and suicidal ideation. These symptoms are part of or similar to symptoms listed under the applicable schedular rating criteria. The schedular rating criteria specifically include ratings based on occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due psychiatric symptoms. The schedular rating criteria also include ratings based on analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, 16 Vet. App at 442; see also 38 C.F.R. § 4.21. Additionally, the Board has considered probative GAF scores, which are incorporated through the DSM-IV as part of the schedular rating criteria, as reflective of the degree of severity of psychiatric symptoms or overall functional impairment caused by the Veteran's PTSD. For these reasons, the Board finds that the schedular rating criteria is adequate to the Veteran's disabilities and referral for consideration of an extraschedular evaluation is not warranted. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his occupation and daily life. Insomuch as the Veteran contends that his current psychiatric problems render him unemployable, the Board finds that issues with employability are adequately addressed by the Veteran's claim for a TDIU which is being granted in this case. In the absence of exceptional factors associated with service-connected PTSD, the Board finds that prior to January 9, 2010, the criteria for referral for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). While the Veteran contends that service-connected PTSD renders him unemployable, the Board finds that this is adequately addressed by the separate (extraschedular) claim for a TDIU which the Board has granted. TDIU Criteria and Analysis TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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). Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). Pursuant to the increased rating decision above, the Board has granted a 70 percent rating for service-connected PTSD for the rating period prior to January 9, 2010. The Veteran is additionally service connected for bilateral hearing loss, rated 20 percent disabling; tinnitus and nasal allergies/rhinosinusitis, each rated 10 percent disabling , and left epididymitis, rated 0 percent disabling. The Board finds that for the increased rating period prior to January 9, 2010 the Veteran has met the threshold criteria for consideration of a TDIU under 38 C.F.R. § 4.16(a). Therefore, application of a TDIU is appropriate so long as the severity of the Veteran's service-connected disabilities warrant such a rating during this time period. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The next step is to determine whether the veteran is unemployable due to his service-connected disabilities. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). In evaluating a veteran's employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). 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 and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. 38 C.F.R. §4.16(a). After a review of all the evidence, lay and medical, the Board finds that for the rating period prior to January 9, 2010, the evidence weigh for and against the appeal for TDIU for this period is at least in equipoise as to whether the Veteran was unemployable due to service-connected disabilities, primarily PTSD. SSA medical records show that the Veteran has been unemployed since April 1997 due to a non-service-connected back disability. A November 2006 letter from the Veteran's VA psychiatrist also indentifies lifelong employment issues due to PTSD symptoms, and the examiner opined that, due to his PTSD and physical condition, he was unemployable. A November 2006 VA examiner also opined that PTSD symptoms, particularly the Veteran's history of irritability and anger outbursts, would likely cause him to have problems with future employment. In November 2009, the Veteran's psychiatrist stated that the Veteran could not work due to both physical and mental problems, in rendering this opinion, the psychiatrist specifically discussed the effects of PTSD symptoms on the Veteran's employability, which included problems with concentration and focus and problems with people in authority. While VA treating physician's did not clearly differentiate whether the Veteran was unemployable due to service-connected PTSD and service-connected physical disabilities versus nonservice-connected physical disabilities, an April 2010 VA examiner stated that, although a medical injury reportedly led to his retirement from work, the Veteran did not appear to be able to have sufficient psychological/coping resources to sustain gainful employment at the present time. The April 2010 VA examination is dated just months after the relevant increased rating period on appeal ,and the exact time frame for the Veteran's state of unemployability due to PTSD, as assessed by examiner, is not clear. The Board finds that April 2010 VA opinion, when considered in conjunction with other evidence of record, tends to support finding that prior to January 9, 2010 the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected PTSD. Resolving reasonable doubt in the Veteran's favor, the Board finds the Veteran was unable to secure or follow a substantially gainful occupation due to his service- connected disabilities, to include PTSD, prior to January 9, 2010. For these reasons and resolving the benefit of the doubt in favor of the Veteran, the Board finds that for the entire rating period prior to January 9, 2010 a TDIU is warranted. See 38 C.F.R. §§ 4.3, 4.7. ORDER For the period prior to January 9, 2010, an increased rating of 70 percent for PTSD is granted. For the period prior to January 9, 2010, a TDIU is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs