Citation Nr: 1324522 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-20 779 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial disability rating greater than 50 percent for the service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from July 1969 to January 1974. The higher initial rating issue for PTSD initially came to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the RO. During the course of the initial rating appeal for the service-connected PTSD, the Veteran has also submitted an allegation of unemployability due to his service-connected PTSD. See e.g., October 2010 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) with accompanying statement. He stated that he had not worked full-time since 2003 due to his service-connected PTSD disability. As such, it follows that a request for TDIU rating was reasonably raised. See 38 C.F.R. § 3.156(b); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability). See also Mayhue v. Shinseki, 24 Vet. App. 273, 280-282 (2011); Norris v. West, 12 Vet. App. 413, 421 (1999); Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Therefore, the issue of entitlement to a TDIU rating was added to the present appeal. In April 2010, the Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims folder. In August 2010, the Board remanded the case to the RO for additional development. After completion of this development by the RO, the case has been returned to the Board for the purpose of appellate disposition. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records dated from 2011 to 2012, which are pertinent to the present appeal. However, these records were reviewed by the RO. FINDINGS OF FACT 1. The service-connected PTSD disability is shown to have been manifested by such symptoms as frequent depression and anxiety, variable mood, irritability, nightmares, flashbacks, hypervigilance, hopelessness, anger, avoidance (especially of crowds), social isolation, "anxious" or "constricted" affect, slowed speech, decreased energy, panic attacks (at times), poor concentration, crying spells, chronic sleep impairment, forgetfulness, "mild" memory impairment, and psychiatric symptomatology often described as causing a "moderate" or "moderate to considerable" degree of occupational and social impairment; his symptoms are not shown to be productive of more than occupational and social impairment with reduced reliability and productivity. 2. The Veteran currently has the following service-connected disabilities: PTSD, rated as 50 percent disabling; diabetes mellitus, rated as 20 percent disabling; erectile dysfunction, rated at no percent; and diabetic nephropathy, rated at no percent disabling. The combined service-connected disability rating is 60 percent under the combined ratings table. Thus, the percentage criteria for TDIU rating are not met. 3. The weight of the evidence does not demonstrate that the Veteran is precluded from securing and following a substantially gainful occupation due to his service-connected disabilities for the purposes of referral for extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial disability rating greater than 50 percent for the service-connected PTSD disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.21, 4.126, 4.130 including Diagnostic Code 9411 (2012). 2. As the service-connected disabilities alone have not rendered the Veteran unemployable, the criteria for referral of the claim for a TDIU rating for extraschedular consideration are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist For both the higher initial rating for PTSD and TDIU issues on appeal, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of a VCAA letters from the RO to the Veteran dated in January 2007, February 2007, December 2008, September 2010, and August 2011. Specifically, these VCAA notice letters effectively satisfied the notification requirements of VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate the higher initial rating and TDIU issues; (2) informing him about the information and evidence the VA would seek to provide; (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, the January 2007, September 2010, and August 2011 letters from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned when service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Moreover, the December 2008 VCAA notice letter advised the Veteran of the additional notice requirements for increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (minimum notice requirements pursuant to VCAA for an increased rating claim), rev'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to the effect on daily life and as to the assigned or cross-referenced diagnostic code under which the disability is rated). The outcome of these holdings is that VCAA notice for an increased rating claim does not have to be individually tailored to each Veteran's particular facts, but rather only a generic notice is required. In this regard, the December 2008 VCAA letter was legally sufficient. In any event, this appeal arises from disagreement with the initial evaluation following the grant of service connection for PTSD in an October 2008 rating decision. Both the U.S. Court of Appeals for Veterans Claims (Court) and the Federal Circuit Court of Appeals have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With regard to timing, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If not timely or inadequate, such errors can be effectively "cured" by providing any necessary VCAA notice and then and readjudicating the claim. That is, a Statement of the Case (SOC) or SSOC can readjudicate the claim so that the intended purpose of the notice is not frustrated and the appellant is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As a matter of law, VA may cure a timing of notice defect by taking proper remedial measures, such as issuing a fully compliant VCAA notice followed by a subsequent SOC or SSOC. Prickett, 20 Vet. App. at 376. The timing defect was cured. After providing additional VCAA notice, the RO readjudicated the issues on appeal in a latter September 2012 SSOC. Therefore, any timing defect in the notice has been rectified. Prickett, 20 Vet. App. at 376. Accordingly, prejudicial error in the timing or content of VCAA notice has not been established as any defect was not outcome determinative. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs), service personnel records (SPRs), VA inpatient and outpatient treatment records, and Social Security Administration (SSA) disability records. For his part, the Veteran has submitted personal statements, duplicate medical evidence, private medical evidence, hearing testimony, and representative argument. The Veteran was also afforded October 2008, October 2010, and December 2011 VA examinations to rate the current severity of his PTSD disability. The need for a more contemporaneous examination occurs only when the evidence indicates that the current rating may be incorrect or when the evidence indicates there has been a material change in the disability. See 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83. Here, the December 2011 VA examination is recent in time. All of the VA examinations, taken as a whole, are fully sufficient to evaluate the appeal. In addition, no other probative medical or lay evidence demonstrates a worsening of the anxiety disorder beyond the initial 50 percent rating currently assigned. VA mental health treatment records dated in 2011 and 2012 do not reveal a worsening of the disability beyond the 50 percent rating currently assigned. Therefore, a new VA examination to rate the severity of the PTSD disability is not warranted. With regard to the April 2010 videoconference hearing, in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2). At the April 2010 hearing, the Veterans Law Judge and representative for the Veteran outlined the issue on appeal and engaged in a colloquy as to substantiation of the higher rating claim. There was a discussion with respect to the particular psychiatric signs and symptoms the Veteran exhibited, for purposes of securing higher ratings. Moreover, during the course of the appeal, the Veteran's representative has addressed the rating criteria necessary to establish a higher initial rating. See June 2013 Appellant's Post-Remand Brief. Overall, the hearing was legally sufficient. Finally, the RO substantially complied with the Board's August 2010 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). Specifically, pursuant to the remand, SSA disability records were secured, VA treatment records were secured, additional VCAA notice was provided for the TDIU issue on appeal, additional forms and development pertinent to the TDIU issue were provided to the Veteran, and the Veteran was provided VA examinations to rate the current severity of the service-connected PTSD, and to determine if he was unemployable due to service-connected disability. The RO has substantially complied with the Board's instructions. In summary, the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). Governing Laws and Regulations for Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, 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. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of her disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). VA regulation indicates that the Veteran's entire history is reviewed when assigning a disability evaluation per 38 C.F.R. § 4.1. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R.§ 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Analysis - Increased Rating Above 50 Percent for PTSD In the October 2008 rating decision on appeal, the RO granted service connection for PTSD. The service-connected PTSD is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130. Because the Veteran has perfected an appeal as to the assignment of an initial rating following the initial award of service connection for PTSD, the Board is required to evaluate all the evidence of record reflecting the period of time between the effective date of the initial grant of service connection until the present. The Board will also consider probative evidence prior to this date, to the extent this evidence sheds additional light on the Veteran's overall disability picture. This could result in "staged ratings" based upon the facts found during the period in question. Fenderson v. West, 12 Vet. App. 119, 126 (1999). That is to say, the Board must consider whether there have been times when his PTSD has been more severe than at others. Id. In the present case, an initial rating of 50 percent was awarded for the service-connected PTSD, effective on November 30, 2006, the date the original service connection claim for PTSD was received by the RO. The Veteran contends that his service-connected PTSD is more severe than is contemplated by the currently-assigned 50 percent rating. See April 2009 VA Form 9; June 2013 Appellant's Post-Remand Brief. Mental disorders are evaluated under the general rating formula for mental disorders, a specific rating formula presented under 38 C.F.R. § 4.130. In addition, the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed within 38 C.F.R. § 4.130. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Once a Veteran has been diagnosed with a service-connected mental disorder, the VA reviews his medical history to determine how badly the disorder has disrupted the Veteran's social and occupational functioning. The level of disability is rated according to a General Rating Formula for Mental Disorders, codified at 38 C.F.R. § 4.130 ("General Rating Formula"), which provides for ratings of zero, 10, 30, 50, 70, or 100 percent. The VA compensates Veterans beginning at 10 percent disability, and compensation increases at each level. As provided by the General Rating Formula, a 50 percent rating is appropriate when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty 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. 38 C.F.R. § 4.130. A 70 percent rating is in order when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is in order when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Federal Circuit recently clarified that the General Rating Formula for Mental Disorders requires not only (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency or duration; but also (2) that those symptoms cause the level of occupational and social impairment specified in the regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The 70 percent disability rating regulation, in particular, contemplates initial assessment of the symptoms displayed by the Veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies "in most areas." Id. In evaluating the evidence, the Board has also noted various GAF scores contained in the DSM-IV, which clinicians have assigned. A GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95. Higher GAF scores denote increased overall functioning of the individual. For instance, a score of 21-30 illustrates "[b]ehavior . . . considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day; no job, home or friends)." DSM-IV at 46-47. A score of 31-40 represents "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school)." Id. A score of 41-50 illustrates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A higher score of 51-60 represents "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Id. A higher score of 61-70 illustrates "[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." Id. The evidence of record does not meet the criteria for an initial 70 percent rating for the service-connected PTSD. 38 C.F.R. § 4.7. The medical and lay evidence of record is not indicative of someone with psychiatric symptomatology causing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, required for the 70 percent rating. There were deficiencies in mood and work and social relationships; regardless, the whole of the evidence of record indicates that a rating at 70 percent is not for assignment. In making this determination, the Board has also considered additional, similar symptomatology not specifically addressed in the criteria under the General Rating Formula. See again Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In making this determination, the Board has reviewed both the medical and lay evidence of record: VA mental health treatment (outpatient and inpatient) records dated from 2004 to 2012; private medical evidence; VA psychological examinations dated in October 2008, October 2010, and December 2011; SSA disability records dated from 2005 to 2007; the Veteran 's hearing testimony; the representative's argument, and the lay statements from the Veteran and his ex-spouse. This medical and lay evidence of record documents such signs and symptoms including frequent depression and anxiety, variable mood, irritability, nightmares, flashbacks, hypervigilance, hopelessness, anger, avoidance (especially of crowds), social isolation, "anxious" or "constricted" affect, slowed speech, decreased energy, panic attacks (at times), poor concentration, crying spells, chronic sleep impairment, forgetfulness, "mild" memory impairment, and psychiatric symptomatology often described as causing a "moderate" or "moderate to considerable" degree of occupational and social impairment. The Veteran has been prescribed several psychiatric medications for his PTSD. He has also received individual and group PTSD psychotherapy. He has a history of drug and alcohol abuse. He was arrested one time in 1992 for DUI. Overall, consideration of these psychiatric signs and symptoms and circumstances reflects the level of impairment indicative of no more than the 50 percent rating criteria. See 38 C.F.R. § 4.130. Notably, a March 2007 VA mental health treatment note indicated that, upon testing, there was evidence of "exaggerated" symptomatology. (An earlier January 2006 SSA psychiatric review technique report also noted "malingering"). A September 2007 VA mental health treatment note indicated that the Veteran's life had improved and his attitude had changed. At the November 2010 hearing, he testified that he was better at dealing with his panic attacks and was able to go fishing. A December 2007 VA mental health treatment note related that he played games on the computer, listened to music, and watched movies. He spends a lot of time with his youngest daughter. An April 2010 VA mental health treatment note mentioned that he exercised regularly and enjoyed fishing. These treatment records provide evidence against a level of impairment indicative of a 70 percent rating. Also, the Veteran's other symptoms of record, although not required, generally do not include the following: suicide ideation; obsessional rituals which interfered with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression; spatial disorientation (Veteran was frequently oriented to person, place, and situation); neglect of personal appearance and hygiene (few hygiene problems were recorded); and inability in establishing and maintaining effective relationships (Veteran had difficulties but still had meaningful relationships). Crucially, lay and medical evidence of record does not show this symptomatology caused occupational and social impairment with deficiencies in most areas. See 38 C.F.R. § 4.130. With regard to work, the Veteran has not been gainfully employed since 2003. Up to that point, he had worked at a local Department of Disability for 14 years. The Veteran said that his PTSD caused anger, difficulty interacting with others, and difficulty focusing and concentrating. The SSA considered the Veteran disabled since 2003 due to his PTSD. VA inpatient records from September 2006 to November 2006 noted that the Veteran was not employable due to "severe" PTSD. However, the VA examinations dated in October 2008, October 2010, and December 2011 indicated that he had left his job in 2003 due to a nonservice-connected back injury, as opposed to his service-connected PTSD. The Veteran had PTSD symptoms on the job, but was able to manage them, according to his own statement. The VA examiners assessed that the Veteran's occupational impairment was "moderate" or "moderate to considerable" in degree. The December 2011 VA examiner found that the service-connected PTSD did not prevent employment. In any event, the Board acknowledges that, overall, the Veteran clearly had difficulty adapting to stressful circumstances in a work setting due to his PTSD, an important criterion for a 70 percent rating. Regardless, as discussed in detail hereinbelow, he did not exhibit the necessary, accompanying degree of social impairment warranted for a 70 percent rating. With regard to social impairment, the VA treatment records, hearing testimony, and VA examinations indicated that the Veteran was able to perform activities of daily living and recreational activities such as fishing. While socially isolated, he could still participate in individual and group psychotherapy. Notably, he did not exhibit an inability in establishing and maintaining effective relationships. Instead, he exhibited difficulty in that area. He could still function and communicate with people, albeit with some limitations. He reported a good relationship with his three children and grandchildren. He lived alone and was not dating. His ex-wife was a "close" friend. The Veteran was still able to maintain relationships with his family members. He also had 2-3 casual friends. He sat in the park and was able to cook and clean for himself. Thus, he was able to function independently. The Veteran avoided crowds and preferred to be alone. He had one instance in September 2010 where he threatened his ex-wife and had to be hospitalized (he asserts that VA's denial of his increased rating claim for PTSD sparked his depression and anger). Regardless, overall, the VA examiners noted a "moderate" or "moderate to considerable" degree of social impairment due to the service-connected PTSD. This evidence is not representative of a 70 percent level of social impairment. With the exception of a few limited complaints of suicide ideation, the Veteran's April 2010 hearing testimony supported this conclusion as well. Another important factor was that many, but not all of the GAF scores in these records are indicative of only "moderate" impairment. See March 2007 VA mental health treatment note (GAF score of 60); the June 2007 VA mental health treatment note (GAF score of 65); September 2007 VA mental health treatment note (GAF score of 65); April 2008 VA mental health treatment note (GAF score of 60); October 2008 VA psychological examination (GAF score of 54); December 2008 VA mental health treatment note (GAF score of 65); May 2009 VA mental health treatment note (GAF score of 65); April 2010 VA mental health treatment note (GAF score of 60); September 2010 VA mental health treatment note (GAF score of 51); March 2011 VA mental health treatment note (GAF score of 52); September 2011 VA mental health treatment notes (GAF scores of 52 and 53); December 2011 VA psychological examination (GAF score of 54); May 2012 VA mental health treatment note (GAF score of 55). Throughout the appeal, these GAF scores are not reflective of someone who had psychiatric disability at a 70 percent level. Although the VA examiner's use of this descriptive term is not dispositive of the rating that should be assigned, it is nonetheless probative evidence to assist in making this important determination. 38 C.F.R. §§ 4.2, 4.6. The Board has considered that the Veteran exhibited "severe" psychiatric symptomatology indicative of a 70 percent rating prior to the November 30, 2006 effective date assigned in the present case. Specifically, the Veteran was hospitalized for his PTSD in May 2005, October 2005, and from September 2006 to November 2006. Prior to November 30, 2006, the Veteran exhibited suicide ideation, constant depression and anxiety, hallucinations and homicidal ideation towards his brother. His GAF scores during this period were 30 and 35, indicative of serious and major impairment. SSA disability records also confirm this symptomatology. The Board has considered this evidence as relevant. However, subsequent to the November 30, 2006 effective date assigning the initial 50 percent rating for PTSD, the Veteran has rarely exhibited psychiatric symptomatology to this severe a degree except on one occasion (during a brief September 2010 VA inpatient hospitalization). Overall, the probative medical and lay evidence of record does not support an initial 70 percent rating for the service-connected PTSD after November 30, 2006, despite the presence of this earlier symptomatology. The Board acknowledges that, as of November 30, 2006, the Veteran on occasion exhibited a few of the symptoms listed under the 70 percent rating criteria. At times there was suicide ideation; there were several instances of auditory and visual hallucinations; impaired impulse control; unprovoked irritability, and periods of continuous depression. See e.g., April 2010 hearing testimony (Veteran reported suicide ideation); September 2010 VA mental health and inpatient treatment notes; June 2013 Appellant's Brief. In September 2010 the Veteran had homicidal feelings and threatened his ex-wife. He reportedly was upset at VA for denying him a higher rating. He was hospitalized for an exacerbation of his PTSD and had a police escort to the ER. There were also a few limited instances of GAF scores indicative of a higher rating. See September 2010 VA inpatient treatment records (GAF scores under 30); October 2010 VA psychological examination (GAF score of 50); December 2010 VA mental health treatment note (GAF score of 50). However, most treatment records after November 30, 2006 are negative for this symptomatology. Even when considering the few instances of these symptoms, overall, as of November 30, 2006, the Veteran's symptoms did not cause occupational and social impairment with deficiencies in most areas, to which a 70 percent disability requirement refers. See Vazquez-Claudio, 713 F.3d at 118 (the Veteran's psychiatric symptoms must cause the level of occupational and social impairment specified in the General Rating Formula). The evidence of record as a whole weighs more heavily against an initial 70 percent rating. What is especially apparent is that a degree of social impairment at a 70 percent level is not established. Any minor fluctuations in the severity of his disability were episodic or temporary in nature; the VA treatment records did not reveal that his infrequent severe symptoms were sustained. The Veteran's level of occupational and social impairment is more than adequately reflected in the initial 50 percent rating currently assigned. 38 C.F.R. § 4.10. Accordingly, on this record, the Board finds that the evidence is against an initial disability rating greater than 50 percent for the service-connected PTSD disability. 38 C.F.R. § 4.3. Fenderson Consideration Since the effective date of his PTSD award (November 30, 2006), the service-connected PTSD has not been more severe than contemplated by its 50 percent rating, so the Board cannot "stage" his rating. Fenderson, 12 Vet. App. at 126. Extraschedular Consideration Finally, there is no evidence of exceptional or unusual circumstances to warrant referring the case for extraschedular consideration. 38 C.F.R. § 3.321(b)(1). The General Rating Formula for Mental Disorders reasonably describes the Veteran's disability level and symptomatology with contemplation of the relative degree of occupational and social impairment. The Board finds that the Veteran's psychiatric symptomatology is fully addressed by the rating criteria under which such disability is rated. The Veteran does not have any PTSD symptoms or effects which are not provided for in the Rating Schedule. Therefore, since the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. In other words, since the Veteran's PTSD disability picture is contemplated by the Rating Schedule, there is no exceptional disability picture that would warrant consideration of factors such as marked interference with employment or frequent periods of hospitalization. Thun, 22 Vet. App. at 116. See also 38 C.F.R. § 3.321(b)(1). The medical and lay evidence of record fails to show anything unique or unusual about the Veteran's PTSD that would render the schedular criteria inadequate. All of the Veteran's psychiatric symptoms are contemplated in the 50 percent rating assigned for PTSD, including his degree of work and social impairment. Moreover, the Veteran also has never argued for an extraschedular rating under § 3.321(b). The Board is aware of the Court's recent holding that VA's disability-by-disability interpretation of § 3.321(b)(1) was consistent with its statutory and regulatory scheme. Johnson v. Shinseki, No. 10-1785 (Vet. App. Mar. 27, 2013). Thus, the Board does not have to consider the Veteran's multiple service-connected disabilities on a collective basis when determining whether an extraschedular referral is warranted here. Governing Law and Regulations for TDIU Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU rating may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. But for the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. Entitlement to a TDIU rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340 , 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Analysis - TDIU The Veteran currently has the following service-connected disabilities: PTSD, rated as 50 percent disabling; diabetes mellitus, rated as 20 percent disabling; erectile dysfunction, rated at no percent; and diabetic nephropathy, rated at no percent. The combined service-connected disability rating is 60 percent under the combined ratings table. Thus, the schedular percentage criteria for a TDIU rating are not met. 38 C.F.R. §§ 4.16(a), 4.25. Consequently, at this juncture, the Board will consider whether referral to the Director of Compensation and Pension Services for an extraschedular TDIU rating is warranted, as the Veteran does not meet the percentage requirements for TDIU. 38 C.F.R. § 4.16(b). That is, since the Board itself cannot assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case to the Director of Compensation and Pension Services for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). In any event, a TDIU determination, either on a schedular or extraschedular basis, requires that the Veteran be unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). Throughout the entire appeal period, the evidence of record is mixed with respect to the issue of whether referral of a TDIU rating on an extraschedular basis is warranted. The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In this regard, the Board finds that the criteria for referring for a TDIU rating on an extraschedular basis are not met. 38 C.F.R. § 4.16(b). The negative evidence of record against referral for a TDIU rating outweighs the positive evidence of record in support of it. As to the favorable evidence in support of a TDIU rating, the Veteran contends that he is unable to handle or secure gainful employment due to his service-connected PTSD and diabetes mellitus disabilities. He reports last working on a full-time basis in 2003 at a local Department of Disability. He had worked there for 14 years. The Veteran says his PTSD caused anger, difficulty interacting with others, and difficulty focusing and concentrating. He also maintained that his diabetes mellitus was worsening such that he has increased his medication dosage to treat it. However, the Board sees that the Veteran has also discussed the functional limitations caused by his nonservice-connected lumbar spine, shoulder, ankle, leg, stomach, and hypertension disorders. The Veteran completed high school and two years of technical college. He is currently 63 years of age. See October 2010 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) with accompanying statement; April 2010 hearing testimony at pages 6-8; June 2013 Appellant's Post-Remand Brief. As to the favorable evidence in support of a TDIU rating, in August 2007, the SSA granted disability benefits beginning in October 2003 due to his PTSD. An August 2007 SSA psychiatric review technique report indicated that the Veteran would have "marked" difficulty interacting appropriately with others on a sustained basis and would have difficulty performing work on a sustained basis without psychologically based symptoms interfering with his work day. A September 2005 SSA psychological examiner issued a clinical functional assessment concluding that PTSD resulted in "marked restriction" in the Veteran's ability to perform work-related tasks. The Veteran would have difficulty interacting with supervisors and co-workers. He would have difficulty concentrating, necessitating rest periods during the work day and extra days off during the week. As to the favorable evidence in support of a TDIU rating, after a VA psychiatric hospitalization from September 2006 to November 2006, a VA Inpatient Discharge report dated in November 2006 signed by a VA psychiatrist assessed that the Veteran was unemployable due to chronic, severe PTSD, permanent in nature, with persistent symptoms and frequent flare-ups having an adverse impact on several of his physical illnesses. The Board now turns to evidence of record that is against the award of a TDIU rating. As to the negative evidence against a TDIU award, in an earlier July 2004 service connection claim, the Veteran stated that it was his nonservice-connected lumbar spine disorder due to an on-the-job injury that prevented him from working. There was no mention of symptoms from a psychiatric disorder at that time. As to the negative evidence against a TDIU award, an October 2008 VA psychological examiner noted that the Veteran left his job in 2003 due to his nonservice-connected back condition. The VA examiner opined that his service-connected PTSD only "moderately to considerably" impaired his ability to maintain employment. As to the negative evidence against a TDIU award, an October 2010 VA psychological examiner also noted that the Veteran left his job in 2003 due to his nonservice-connected back condition. After discussing his current PTSD symptoms, the VA examiner reflected that his service-connected PTSD only resulted in a "moderate" degree of impairment in occupational functioning. As to the negative evidence against a TDIU award, a December 2011 VA psychological examiner also noted that the Veteran left his job in 2003 due to his nonservice-connected back condition. The Veteran reported that his PTSD caused him to be irritable on the job, but that he was able to manage it and his concentration on the job was "ok." The VA examiner opined that his service-connected PTSD did not render him unable to secure and maintain substantially gainful employment; but rather only "moderately to considerably" impaired his ability to maintain employment. As to the negative evidence against a TDIU award, a January 2006 SSA Mental Residual Functional Capacity Assessment commented that the Veteran was only "moderately limited" in various mental health categories. It was noted that the Veteran could interact appropriately with co-workers, but would do best in situations where he did not have to deal with the general public. He would do best in a low stress work environment. As to the negative evidence against a TDIU award, a February 2012 VA general medical examiner remarked that the service-connected diabetes mellitus did not render him unable to secure and maintain a substantially gainful physical and sedentary type of employment. His service-connected diabetes mellitus was controlled, and his complications were no hindrance to employment. Overall, this VA examination provided clear evidence that the service-connected diabetes mellitus did not cause any discernible functional impairment. In the present case, the Board concludes that the evidence of record against the award of a TDIU rating outweighs the favorable evidence of record on this issue. In denying the Veteran's claim for a TDIU rating, the Board has considered the service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue under 38 C.F.R. § 4.16(b). Although it might be difficult for the Veteran to work in his past occupation as a disability counselor, it is not shown that he could not work in different employment in a low stress work environment. He has some business management training subsequent to high school. He previously stopped working in 2003 due to his lumbar spine disability, not his PTSD. The Board also acknowledges that, in 2007, the SSA ultimately determined that the Veteran was disabled and could not work due to his service-connected PTSD. While the decision by the SSA on a claim before that agency is not controlling with respect to VA's determination on a claim, the SSA's determination regarding the Veteran's unemployability and the reasons for that determination are pertinent for VA purposes. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Masors v. Derwinski, 2 Vet. App. 181, 187-88 (1992). Still, the SSA determination, although relevant, is not binding on VA. On three occasions, VA examiners found that the Veteran only exhibited "moderate" to "moderate to considerable" impairment. The VA examinations and opinions were thorough, supported by a discussion of psychiatric symptoms, and based on a review of the claims folder. The Board also has reflected upon the November 2006 VA Inpatient Discharge report, which assessed the Veteran as "unemployable" due to his "severe" PTSD. In this regard, in 2005 and 2006, as discussed, the PTSD did exhibit significant psychiatric symptomatology and impairment. However, subsequent improvement from 2007 to 2012 revealed that any "severe" level of impairment was not permanent, as only "moderate" to "moderate to considerable" impairment was shown. Thus, this report, although probative, is outweighed by the subsequent evidence of record showing less significant psychiatric symptomatology. The Board emphasizes that 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. Van Hoose, 4 Vet. App. at 363 (emphasis added). And once again, this determination must be made without considering his advancing age (63 years old) and the effects of his nonservice-connected disabilities, such as his lumbar spine condition. 38 C.F.R. § 4.19. Yet, there is consistent, probative evidence of record that the Veteran's nonservice-connected lumbar spine caused him to stop working, as opposed to his PTSD. The Veteran himself in an October 2010 statement accompanying his TDIU application emphasized the functional limitations from his nonservice-connected lumbar spine, shoulder, ankle, leg, stomach, and hypertension disorders. The Veteran does not meet the percentage criteria for TDIU rating under 38 C.F.R. § 4.16(a). In addition, overall, the evidence does not demonstrate an inability to secure or follow a substantially gainful occupation due to his service-connected disabilities; as such, a referral for extraschedular consideration is not warranted. 38 C.F.R. § 4.16(b). As the preponderance of the evidence is against the claim for a TDIU rating for referral on an extraschedular basis, the benefit of the doubt doctrine is not applicable and the TDIU appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER An initial disability rating greater than 50 percent for the service-connected PTSD disability is denied. The claim for a TDIU rating on an extraschedular basis is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs