Citation Nr: 1329479 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 10-41 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to the service- connected PTSD. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1950 to September 1953. The appeal to the Board of Veterans' Appeals (Board) arises from a September 2009 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Winston- Salem, North Carolina, which granted service connection for PTSD, evaluated at 30 percent, effective from April 30, 2009. Attached to the December 2009 Notice of Disagreement (NOD), the Veteran submitted a December 2009 private medical statements, which seems to have raised the issue of entitlement to a TDIU rating due exclusively to the service- connected PTSD under the holding in Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009) (when entitlement to a TDIU is raised during the administrative appeal of the initial rating assigned for the underlying disability, it is part of the claim for benefits for that disability). Thus, the Veteran has perfected a timely appeal contesting the (initial) 30 percent rating for PTSD and raised, within the context of this appeal, the issue of a entitlement to a TDIU rating due to the service connected PTSD. See Notice of Disagreement, with attached Private Medical Statement, dated December 2009; Statement of the Case (SOC), dated August 2010; Substantive Appeal (VA Form 9), dated October 2010. The issue concerning the propriety of the initial rating assigned for PTSD was previously before the Board in November 2011, August 2012, and March 2013, at which time the issue was remanded to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. Upon remand in March 2013, the Veteran was scheduled for a VA examination by the VA Medical Center (VAMC) in May 2013 for his PTSD claim. The information of record indicates that the Veteran told the VAMC that same month that he was withdrawing this claim. In May 2013, the AMC sent the Veteran a letter informing him that a withdrawal of his (PTSD) claim must be submitted in writing. The Veteran did not respond, and thus, without written documentation, the issue of entitlement to an initial rating in excess of 30 percent for PTSD, including a TDIU rating, remains on appeal. 38 C.F.R. § 20.204 (2012). The Veteran's Virtual VA paperless claims file was also reviewed in preparing this decision and remand. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Since April 30, 2009, the Veteran's PTSD has resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. With resolution of reasonable doubt in favor of the Veteran, his service-connected PTSD is shown to be of such severity so as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, since April 30, 2009, the criteria for an initial 70 percent disability rating, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2012). 2. The criteria for a TDIU due to the service-connected PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VA's Duties to Notify and Assist Regarding the TDIU claim, in light of the favorable determination being reached in this decision, the Board finds that no further discussion of Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) compliance is necessary as any error that was committed as to either the duties to notify or assist is harmless. Regarding the PTSD claim, under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). As to the issue of a higher initial disability for PTSD, the appeal arises from the Veteran's disagreement with the initial rating assigned following the grant of service connection for that condition. As such, pertinent regulation provides that VA has not further obligation to provide notice under 38 U.S.C.A. § 5103 on this downstream element of the claim. See 38 C.F.R. § 3.159(b)(3)(1) (2012). In so providing, the courts have held that once service connection is granted, the claim is substantiated, further notice as to the "downstream" elements concerning the initial rating and effective date is not required, and any defect in the notice is not prejudicial. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006); see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, because the section 5103 notice provided before the grant of service connection for PTSD was legally sufficient, VA's duty to notify in this case is satisfied. See also Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, supra. In any event, the RO furnished the Veteran a SOC that addressed the initial rating assigned, included notice of the criteria for a higher rating for PTSD, and provided the Veteran with further opportunity to identify and submit additional information and/or argument, which the Veteran has done by perfecting his appeal. See 38 U.S.C.A. §§ 5103A, 5104(a), 7105 (West 2002). Under these circumstances, VA fulfilled its obligation to advise and assist the Veteran throughout the remainder of the administrative appeal process, and similarly accorded the Veteran a fair opportunity to prosecute the appeal. See Dunlap v. Nicholson, supra. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His STRs and post-service VA and private treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disorder currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. He has been afforded a VA examination, and the report of that evaluation contains all findings needed to properly evaluate his disability. 38 C.F.R. § 4.2 (2012). The Board is also satisfied as to substantial compliance with its November 2011, August 2012, and March 2013 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the Veteran's claim was remanded in order for the VA to further assist the Veteran in obtaining outstanding private treatment records. Pursuant to the November 2011 Board remand, the AMC sent the Veteran a November 2011 letter asking him to complete and return a VA Form 21-4142 in order for VA to attempt to obtain those records. To date, no response to the November 2011 letter has been received and no mail has been returned to the VA. The remands also included scheduling the Veteran for a VA psychiatric examination. The AMC scheduled the Veteran for a VA examination in September 2012. Prior to the examination, the Veteran was sent a letter in September 2012 informing him of the consequences of failing to report for the examination. The Veteran failed to report for the September 2012 VA examination, and has not provided good cause for his absence. A VA addendum medical opinion was then requested, but the VA examiner, in May 2013, found that he could not provide a medical opinion without first examining the Veteran. Thus, the Veteran was scheduled for a VA examination in May 2013 by the VAMC. The Veteran told the VAMC that same month that he was withdrawing this claim, and thus he did not report for the VA examination. 38 C.F.R. § 3.655(b). The Veteran was sent a letter in May 2013 by the AMC informing him that a withdrawal of his claim must be submitted in writing. 38 C.F.R. § 20.204. The Veteran did not respond, and thus his claim remains on appeal. Id. Given that the Veteran has not shown good cause for his failure to report for the examination, 38 C.F.R. § 3.655(b), and in light of the favorable outcome discussed below, the Board determines that its action to proceed, in part, with adjudication of the appeal, without further examination, resulted in no prejudice to the Veteran. Finally, as directed by the remands, the AMC readjudicated the Veteran's claim in the July 2012, January 2013, and June 2013 Supplemental Statements of the Case (SSOCs). Based on the aforementioned actions, the Board finds that the AMC has substantially complied with the Board's remand directives, and no further actions are required. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim concerning entitlement to an initial disability rating in excess of 30 percent for PTSD. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Initial Ratings Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity in civil occupations. Separate DCs identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (2012). Where a Veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The Veteran is currently in receipt of a 30 percent disability rating under 38 C.F.R. § 4.130, DC 9411 for his service-connected PTSD, since April 30, 2009, the date of his original service connection claim. The Board notes that psychiatric disabilities are rated pursuant to the criteria for the General Rating Formula. 38 C.F.R. § 4.130. Under this Formula, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and, mild memory loss (such as forgetting names, directions, recent events), warrants a 30 percent rating. 38 C.F.R. § 4.130, DC 9411. A 50 percent disability rating is warranted 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; and, difficulty in establishing and maintaining effective work and social relationships. Id. Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and, inability to establish and maintain effective relationships, warrants a 70 percent disability rating. Id. 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, warrants a 100 percent disability rating. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Psychiatric examinations frequently include assignment of a GAF score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (adopted by VA at 38 C.F.R. §§ 4.125 and 4.126 (2012)), a GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). The Board notes that a GAF score ranging from 51-60 indicates 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 peer or coworkers); a score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job); and, a score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. However, the GAF score assigned in a case, like an examiner's assessment of the severity of a disability, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disability, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Initially, the Board notes that medical records show that the Veteran suffered from a traumatic brain injury (TBI) in May 2009. The Veteran was granted service connection for PTSD in September 2009, effective April 30, 2009. However, the Veteran is not service-connected for the TBI. Per the Board's remand directives, the Veteran was scheduled for a VA examination in September 2012 to properly determine the effects of the service-connected PTSD symptoms versus the residuals of the Veteran's non-service connected TBI. Prior to the examination, the Veteran was sent a letter in September 2012 informing him of the consequences of failing to report for the examination. The Veteran failed to report for the September 2012 VA examination, and has not provided good cause for his absence. The usual result of not appearing for the scheduled VA examination is that his disability will be rated based on the remaining evidence of record. 38 C.F.R. § 3.655(b). Here, however, the Board, in its March 2013 remand, found that a VA medical opinion was still necessary in order to satisfy VA's duty to assist the Veteran. Upon remand, a VA addendum medical opinion was requested, but the VA examiner, in May 2013, found that he could not provide a medical opinion without first examining the Veteran. Thus, the Veteran was scheduled for a VA examination in May 2013 by the VAMC. The Veteran told the VAMC that same month that he was withdrawing this claim, and thus he did not report for the VA examination. 38 C.F.R. § 3.655(b). The Veteran was sent a letter in May 2013 by the AMC informing him that a withdrawal of his claim must be submitted in writing. 38 C.F.R. § 20.204. The Veteran did not respond, and thus, without written documentation, the claim remains on appeal. Id. The Veteran has not provided good cause for his absence from the examination, and therefore, the Board finds that another examination is not necessary. 38 C.F.R. § 3.655(b). The claim was then returned to the Board without a recent VA examination or medical opinion. Nonetheless, as the May 2013 VA examiner found that he could not provide a VA addendum medical opinion without an examination of the Veteran, as recent examinations of the Veteran have been unsuccessful, and as there is no medical opinion of record differentiating the Veteran's service- connected PTSD symptoms and his non-service-connected TBI symptoms, the Board finds that it must attribute the Veteran's current symptoms to his service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998) (holding that when a claimant has both service-connected and nonservice-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability). In this regard, the Board will now proceed to rate the Veteran's service-connected PTSD based on the evidence of record. 38 C.F.R. § 3.655(b). In applying the above law to the facts of this case, the Board finds it reasonable to conclude that the Veteran is entitled to a higher initial disability rating of 70 percent for his PTSD. In this respect, the credible lay and medical evidence shows that the Veteran's symptoms of PTSD cause occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 38 C.F.R. § 4.130, DC 9411. In making this determination, the findings of social and occupational impairment were made at the June 2009 VA psychiatric examination. At the examination, the Veteran stated that he retired a few years ago due, in pertinent part, to his psychiatric problems, which made it difficult for him to interact with others. He reported that he was currently married, had some friends, and had a relationship with his son, who helped him with his bills. The Veteran stated that he had to avoid working with others because he was afraid of criticism. His family noted his emotional distance at times. The Veteran reported panic attacks and episodes of violence, but denied the presence of suicidal or homicidal thoughts. He denied any hallucinations. Following a review of the Veteran's claims file and a physical examination of the Veteran, the VA examiner found that the Veteran's service-connected PTSD caused deficiencies in the areas of thinking, family relations, and work. Specifically, the examiner stated that the Veteran had moderate concentration problems, was irritable at home with some outside social contacts, and was able to work up until a few years ago so long as he worked by himself. At the examination, the Veteran's mood was anxious. His thought process was rambling and racing, and his thought content was described as ruminations. His speech was hesitant, and his affect was constricted. The Veteran did not have inappropriate behavior. The examiner found the Veteran's recent and immediate memory to be moderately impaired, such that he forgot daily tasks. The examiner assigned a GAF score of 51, indicating moderate symptoms or moderate difficulty in social, occupational, or school functioning. The examiner found that the Veteran did not have total occupational and social impairment. Findings of social and occupational impairment were also made at a December 2009 private psychiatric examination. At the examination, the Veteran indicated that he had been married twice and had owned and operated an upholstery business for fifty years. The Veteran reported that he socializes frequently with friends and family. He described nightmares and flashbacks several times per week. He indicated that he startles easily, is hypervigilant, and cannot tolerate anyone behind him. The Veteran stated that he hears his name called and hears cars drive up to his residence one time per week, when no one or nothing is there. Following a physical examination of the Veteran, the private physician found that the Veteran's recent memory was moderately impaired, so he could not remember what he read and got lost when traveling. The physician stated that the Veteran's working memory was 100 percent impaired. Anger, sadness, and fear also came upon the Veteran without his understanding why 50 percent of the time, which, per the private physician, was indicative of a dysfunctional prefrontal cortex. The Veteran was able to maintain his minimum personal hygiene. The physician assigned a GAF score of 40, indicating some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. The private physician found that, because of the Veteran's service-connected PTSD, he is "mildly compromised in his ability to sustain social relationships, and he is severely compromised in his ability to sustain work relationships. Therefore, the private physician opined that he considered the Veteran to be permanently and totally disabled and unemployable." Accordingly, based on the aforementioned evidence and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's overall disability picture is most consistent with the criteria for a 70 percent rating. The credible lay and medical evidence demonstrates that the effects of the Veteran's service-connected PTSD symptoms are described to be of the type, frequency and severity that are consistent with occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Thus, in applying the above law to the facts of the case, an initial disability rating of 70 percent for PTSD is warranted. 38 C.F.R. § 4.130, DC 9411. The Board recognizes that the Veteran's PTSD is not manifested by all of the enumerated symptoms for the 70 percent rating. 38 C.F.R. § 4.130, DC 9411. However, as previously stated, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442-43. Further, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate equivalent rating will be assigned. Id. at 443. In reviewing the evidence of record, the Board finds that the evidence establishes that the effects of the Veteran's PTSD more nearly approximate occupational and social impairment with deficiencies in most areas, even though the Veteran's PTSD is not manifested by the entire list of symptoms under the rating criteria. Particularly, the Board notes that the Veteran's GAF scores have ranged from 40 to 51, indicating moderate to major impairment in social and occupational functioning. The Board finds that the overall medical and lay evidence of record supports these GAF scores, and establishes that the Veteran's PTSD causes occupational and social impairment with deficiencies in areas such as work, family relations, thinking and mood. Hence, the Board finds that the Veteran's PTSD is most appropriately rated as 70 percent disabling, since April 30, 2009 (the effective date of the grant of service connection). 38 C.F.R. § 4.130, DC 9411. A higher schedular rating of 100 percent is not warranted, however, as that rating requires evidence of total occupational and social impairment. Specifically, the Board notes that the private physician found that the Veteran was unemployable due to his service-connected PTSD; however, the assignment of a 100 percent schedular rating for the service-connected PTSD requires both total occupational impairment and total social impairment. Here, total social impairment is not demonstrated by the record. The private physician found that the Veteran was only "mildly" compromised in his social relationships, and the Veteran told the physician that he socializes frequently with friends and family. Total social impairment was also not documented at the VA examination, in which the Veteran reported that he was currently married, had some friends, and had a relationship with his son, who helped him with his bills. Additionally, the VA examiner specifically found that the Veteran did not have total occupational and social impairment, following a review of the claims file and a physical examination of the Veteran. Total social impairment was also not demonstrated in the VA and private treatment records. In making this assessment, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran and his ex-wife are competent to give evidence about what they observe or experience. For example, they are competent to report that the Veteran experiences certain symptoms, such as hallucinations and depression, and they are credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Their competent and credible beliefs that the Veteran's disability is worse, do assist to support the assignment of a 70 percent rating, but do not assist to support a higher 100 percent schedular rating, because they are outweighed by the competent and credible VA and private medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The physicians have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the mental status evaluation findings, which do not demonstrate the total social impairment that is also required for the 100 percent schedular rating. Furthermore, the Veteran has not displayed the following suggested, enumerated symptoms for the 100 percent rating: gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting others; and, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). Thus, these examples are not present to support a 100 percent schedular rating for total occupational and social impairment. 38 C.F.R. § 4.130, DC 9411. The Board has also considered the GAF scores assigned throughout the appeal period. His GAF scores have been indicative of moderate to major impairment of social and occupational functioning, which is more consistent with the criteria for a 70 percent rating under DC 9411. Id. As instructed in Mauerhan, the Board must consider the totality of the Veteran's symptomatology and circumstances when adjudicating the appropriate schedular rating under DC 9411. In the opinion of the Board, the Veteran has not demonstrated the type of severity, frequency and duration of PTSD symptomatology, which would support a 100 percent schedular rating premised on "total" occupational and social impairment. Id. In summary, the Board finds that the criteria for a 70 percent schedular rating for the service-connected PTSD, but no higher, have been met, since April 30, 2009. Id. Significantly, the Veteran's symptoms do not appear to have changed significantly during this initial rating period so as to warrant a staged rating. Fenderson, 12 Vet. App. at 126. In sum, the schedular criteria for an initial disability rating of 70 percent, but no higher, for the Veteran's service-connected PTSD, have been met since April 30, 2009, the effective date of the grant of service connection. Thus, an initial 70 percent schedular rating is assigned since April 30, 2009. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The above determination is based on application of provisions of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). However, the regulations also provide for exceptional cases involving compensation. Pursuant to 38 C.F.R. § 3.321(b)(1) (2012), the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, 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 a Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then a Veteran'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"). Here, the Veteran's disability picture is not so unusual or exceptional in nature as to render the disability rating for his service-connected PTSD inadequate. This disability was evaluated under 38 C.F.R. § 4.130, DC 9411. The Board finds that these criteria specifically contemplate the Veteran's level of disability and symptomatology. As noted above, the Veteran's disability is primarily manifested by occupational and social impairment. These symptoms are specifically contemplated by the scheduler criteria under DC 9411. When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by his current disability rating. The criteria for a 70 percent schedular rating for the Veteran's service-connected PTSD more than reasonably describe the Veteran's disability level and symptomatology. Therefore, the currently assigned schedular evaluation is adequate and no referral is required. See VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996); see also 38 C.F.R. §§ 4.71a, 4.124a, DCs 5276, 8522. III. TDIU Claim Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that in determining whether the Veteran is entitled to a total disability rating based upon individual unemployability neither her nonservice-connected disabilities nor her advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a 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. Id. In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disabilities do not prevent her from performing work that would produce sufficient income to be other than marginal. See Friscia v. Brown, 7 Vet. App. 294 (1995). The Court stressed that VA has a duty to supplement the record by obtaining an examination, which includes an opinion on what effect the Veteran's service-connected disabilities have on her ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2012). In this case, the Veteran is currently service-connected for the following disabilities: PTSD, currently rated as 70 percent; shell fragment wound of the right hand, currently rated as noncompensable (0 percent); and, appendectomy scar, currently rated as noncompensable (0 percent). Based on the Board's grant of a higher rating of 70 percent for the service-connected PTSD in this decision, the Veteran now meets the percentage requirements for consideration of a total evaluation under 38 C.F.R. § 4.16(a). The Board must now consider whether the competent evidence otherwise demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Initially, the Board notes that the Veteran is currently unemployed. At the June 2009 VA psychiatric examination, the Veteran stated that he retired a few years ago due, in pertinent part, to his psychiatric problems, which made it difficult for him to interact with others. The Veteran argues that he is currently unable to work due to his service-connected PTSD. The medical evidence supports the Veteran's contentions. Specifically, at the June 2009 VA psychiatric examination, the Veteran stated that he had to avoid working with others because he was afraid of criticism. The Veteran reported panic attacks and episodes of violence. Following a review of the Veteran's claims file and a physical examination of the Veteran, the VA examiner found that the Veteran's service-connected PTSD caused deficiencies in the areas of thinking and work. Specifically, the examiner stated that the Veteran had moderate concentration problems, was irritable at home with some outside social contacts, and was able to work up until a few years ago so long as he worked by himself. At the examination, the Veteran's mood was anxious. His thought process was rambling and racing, and his thought content was described as ruminations. His speech was hesitant, and his affect was constricted. The Veteran did not have inappropriate behavior. The examiner found the Veteran's recent and immediate memory to be moderately impaired, such that he forgot daily tasks. The examiner assigned a GAF score of 51, indicating moderate symptoms or moderate difficulty in social, occupational, or school functioning. At the December 2009 private psychiatric examination, the Veteran indicated that he had owned and operated an upholstery business for fifty years. The Veteran reported that he startles easily, is hypervigilant, and cannot tolerate anyone behind him. Following a physical examination of the Veteran, the private physician found that the Veteran's recent memory was moderately impaired, so he could not remember what he read and got lost when traveling. The physician stated that the Veteran's working memory was 100 percent impaired. The physician assigned a GAF score of 40, indicating some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. The private physician found that, because of the Veteran's service-connected PTSD, he is "severely compromised in his ability to sustain work relationships." Therefore, the private physician opined that he considered the Veteran to be "permanently and totally disabled and unemployable." The Board finds these medical opinions to be competent and credible evidence, and the opinions are supported by the treatment records. Accordingly, in light of the favorable private medical opinion in particular and the lack of contrary evidence, reasonable doubt is resolved in favor of the Veteran at this time. Thus, the Board finds that the Veteran's service- connected PTSD precludes him from securing and maintaining substantially gainful employment consistent with his educational and vocational experiences at this time. Thus, entitlement to TDIU is warranted. ORDER Entitlement to an initial disability rating of 70 percent, but no higher, for PTSD is granted, since April 30, 2009, subject to the statutory and regulatory provisions governing the payment of monetary benefits. Entitlement to a TDIU due to the service-connected PTSD is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs