Citation Nr: 1331504 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-33 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 30 percent, prior to July 7, 2011, for posttraumatic stress disorder (PTSD), and in excess of 50 percent after July 6, 2011. 2. Entitlement to a total disability evaluation based on individual unemployability due to the appellant's service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty from September 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Following the perfection of his appeal, the appellant presented testimony before the Board in June 2012 at the RO. A transcript of that hearing was prepared and has been included in the claims folder for review. When the appellant originally filed his appeal, service connection for PTSD had been awarded and a 30 percent disability evaluation assigned. After the appellant appealed the disability rating, a higher rating of 50 percent was assigned. The effective date was determined to be June 7, 2011. The United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the issue of entitlement to an increased disability evaluation remains in appellate status. The claim was subsequently reviewed by the Board which, in turn, issued a Decision/Remand in October 2012. In that action, the Board denied the appellant's claim involving PTSD. It also denied the appellant's request for a compensable evaluation for bilateral hearing loss. The remaining two issues, those involving entitlement to service connection for a skin disability and a right hip disability were remanded to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The appellant was provided with a copy of the Board's Decision/Remand and appealed to the Court. In a February 2013 Order, the Court granted a Joint Motion for Partial Vacatur and Remand, vacating the Board's Decision and remanding for additional proceedings. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing and prehearing conference, the VLJ noted that basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for benefits. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, the appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2013) and that the Board can adjudicate the claim based on the current record. During the course of the appeal, the appellant, along with his accredited representative, has insinuated that he is unable to work as a result of his service-connected PTSD. Although this issue has not been developed by the AOJ, it is part and parcel of whether a higher disability rating should be assigned for PTSD. The Board finds that its jurisdiction in this matter has been triggered and the issue will be discussed below and has been added to the front page of this decision. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). FINDINGS OF FACTS 1. The appellant's service-connected PTSD is manifested by deficiencies in the areas of family relations and mood, along with an inability to form and maintain close relationships with nonfamily members. The record further indicates that the disorder has produced symptoms of anxiety, anger outbursts, irritability, depression, and extreme sleeplessness. Nevertheless, the disability is not manifested by total occupational and social impairment. 2. The evidence of record indicates the appellant has four years of high school and experience working as a lineman. He last worked in 1998. 3. The appellant's service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation of 70 percent, but no higher, for the appellant's service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1- 4.14, 4.130, Diagnostic Code 9411 (2013). 2. Resolving all reasonable doubt in the appellant's favor, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist the Appellant The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2013). 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) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant should provide in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant proceeding with these issues given the favorable nature of the Board's decision. II. Laws and Regulations Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2013). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 9411, of 38 C.F.R. Part 4 (2013), pertaining to PTSD, provides for a 30 percent disability rating where there is 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). A 50 percent rating is assigned 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. A 70 percent rating is assigned when the psychiatric condition produces 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 assigned when there is total occupational or 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. 38 C.F.R. Part 4, Diagnostic Code 9411 (2013). The Board further notes that a Global Assessment Functioning (GAF) rating (or 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 Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). The Board notes that an examiner's classification of the level of psychiatric impairment, by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging from 61 to 70 reflect some 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, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 (2013) (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 (2013). In determining whether an increased evaluation is warranted, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case an increased rating must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Facts and Discussion Upon receipt of his claim, the appellant was afforded a VA psychiatric examination in January 2009. His claims file was reviewed in conjunction with the examination. His service, to include combat in the Republic of Vietnam, was noted. He had not been employed for approximately ten years due to a knee injury, but did do some volunteer youth sports coaching. He described himself as retired. He was currently married to his wife of 30 years, and reported having three children. His family relationships were generally good, with occasional periods of irritability. He also had occasional contact with several friends. He denied any legal difficulties, or any drug or alcohol abuse. On objective evaluation, the examiner stated the appellant was clean and neatly groomed, but his clothing was "bizarre." His psychomotor activity was unremarkable, and he was cooperative with the examiner. His affect was blunted and his mood was anxious and irritable. He was alert and fully-oriented, with a good attention span and normal thought processes. Thought content, however, included preoccupation with combat exposure during Vietnam service. He attempted to avoid thoughts or feelings which reminded him of his time in Vietnam, and avoided stimuli which also reminded him of Vietnam. He also tended to avoid crowds and noise. Judgment, insight, and intelligence were all within normal limits, and he denied any panic attacks, delusions, or obsessive or ritualistic behaviors. Poor sleep was reported, characterized by insomnia. Homicidal or suicidal thoughts and plans were denied by the appellant. Impulse control was fair. Both recent and remote memory were normal. His symptoms were described as moderate in intensity. A diagnosis of PTSD was confirmed, and a GAF score of 61 was assigned. He was found competent to manage his financial affairs. Nearly two years later, in November 2010, the appellant testified before a Decision Review Officer in November 2010. Regarding his PTSD, he stated that he experienced such symptoms as poor sleep, heightened irritability, flashbacks, and hypervigilance. He had extensive combat participation during his service in Vietnam, and memories of combat continued to bother him at the present. Another VA psychiatric examination was provided the appellant in June 2011. The claims file was reviewed in conjunction with the examination. The appellant denied any current ongoing treatment for his PTSD. He continued to be married to his wife of 32 years, and reported contact with his adult children and a few friends, but he also reported increased irritability as compared to his 2009 VA examination. He also reported some episodic outburst due to his temper and some anxiety in crowds. He continued to coach youth sports as a volunteer. He denied any legal difficulties or violent outbursts, and also denied any drug or alcohol abuse. He tried to avoid thoughts and reminders of his experiences in Vietnam, and reported difficulty falling and staying asleep. It was further noted that the appellant had a sense of a "foreshortened future" in that he did not expect to have a normal life span or an enjoyable life. On objective evaluation, the appellant was alert and fully-oriented. In physical appearance, the appellant was clean, neatly groomed, and casually dressed. His eye contact with the examiner was poor, and he sat away from the interviewer, but was otherwise cooperative. He was restless and tense in his mannerisms, with a suspicious and irritable attitude. His affect was blunted, and his mood was anxious. His attention and cognitive functioning was within normal limits. His thought processes were also within normal limits, but the content reflected intrusive thoughts of his combat experiences in service. The examiner indicated that the appellant was suffering from mild insomnia, only sleeping four hours per evening, and that the appellant was having nightmares about combat two to three times a week. Judgment, insight, and intelligence were all average, and the appellant denied any delusions, hallucinations, panic attacks, or obsessive or ritualistic behavior. He also denied any suicidal or homicidal thoughts or plans. His impulse control was fair. Recent and remote memory were both normal. PTSD was confirmed, and the examiner determined the appellant was competent to manage his finances and household. A GAF score of 51 was assigned. The examiner summarized the appellant has being socially withdrawn, suffering from anxiety in crowds, with bouts of temper, insomnia, nightmares, etcetera. It was also indicated that the appellant was decompensating in comparison to the examination that was performed in 2009. In June 2012, the appellant testified in person before a Veterans Law Judge, seated at the RO. He stated that his current symptoms included heightened anger and irritability, anxiety, and intrusive thoughts of Vietnam. He further indicated to the Veterans Law Judge that tended to avoid going to the VA or seeking any sort of medical treatment from VA because it triggered memories of his combat service. The appellant's attorney provided legal argument concerning the appellant's employment opportunities and capabilities, dated July 2013. It was reported that since the appellant had retired from his job with the power company, he had an increasing number of nightmares, intrusive thoughts, and episodes of loss of temper. The appellant, along with his wife, reported that the appellant was slowly withdrawing from the company of others, that he was irritable many days of the week, and that he was becoming harder to live with per his long-suffering spouse. In other words, the appellant's symptoms have included avoidance, isolative behavior, insomnia, nightmares, increased startle response, hypervigilance, increased tension, intrusive thoughts, restricted affect, panic attacks, some memory impairment, anxiety, irritable temper, self-esteem issues, increased startle response, sleep disturbances, dysphoria, loneliness, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Upon reviewing the record, it is the conclusion of the Board that the evidence supports an evaluation of 70 percent, but no higher, for PTSD. The evidence shows that the appellant has depression, anger-management problems, sleep deprivation, hypervigilance, nightmares, and irritability. The appellant has a very strained relationship with his wife and reports little meaningful social contact with others. The record further insinuates that the appellant suffers at least some, if minimal, memory loss and his spatial awareness has diminished. He also has depression, insomnia, irritability, difficulty concentrating, hypervigilance, exaggerated startle response, intrusive thoughts, restricted/constricted affect, anxiety, auditory hallucinations, and anger outbursts. In addition, the appellant's GAF scores have shown a decrease in value indicating that the appellant was decompensating and that his condition was becoming a very serious impairment. Although the entire record is not without a measure of ambiguity, the Board concludes that the totality of the evidence in the file appears to be at least in approximate balance. It is the conclusion of the Board that the appellant's overall disability picture indicates that a 70 percent evaluation, but no higher, should be assigned for PTSD from the date in which the appellant submitted his claim. 38 C.F.R. § 4.7 (2013). Hence, to this extent the appellant's claim is granted. It is concluded, however, that the evidence does not support an evaluation in excess of 70 percent. The appellant's PTSD alone is not productive of total occupational and social impairment. The appellant does not have gross impairment in thought processes or communication. In addition, no deficits have been noted with respect to the appellant's speech and communication skills. The appellant's behavior is not grossly inappropriate. He does not report nor is he assessed as being in persistent danger of hurting himself or others. It was noted that he is occasionally verbally abusive to his wife but he did not appear to be at risk for acting out violently or significantly at risk of self-harm. He is able to perform activities of daily living, including maintenance of minimal personal hygiene. The appellant is oriented to time and place. None of the various health care providers who have provided treatment to the appellant or who have examined him in conjunction with this claim have concluded that he has total occupational and social impairment due to PTSD. Moreover, although the appellant does not socialize, he also reported that he has a relationship, albeit strained, with his wife and immediate family. Accordingly, total social impairment is not shown. Although the medical evidence hints that the appellant's PTSD may inhibit his ability to obtain and maintain gainful employment, those same records suggest that other disabilities, along with his age and work experience/history, may also be effecting whether the appellant may work. Additionally, as previously noted, none of the records show that the appellant is totally socially impaired. Accordingly, the Board concludes that the criteria for a 100 percent rating are not met. Additionally, the Board has considered whether it is appropriate to assigned "staged ratings." The Board, however, finds that the medical evidence demonstrates more consistently and throughout the appeal that the appellant meets the criteria for a 70 percent rating from the date of his claim. At no point in time, however, is it shown that there is total occupational and social impairment such that a total rating should be assigned for some distinct period of time. Therefore, the assignment of staged evaluations in this case is not necessary. IV. Extraschedular Evaluation The Board has also considered whether the appellant is entitled to an extraschedular evaluation for his psychiatric disorder. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether an appellant is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a appellant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the appellant's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the psychiatric disorder is inadequate. A comparison between the level of severity and symptomatology of the appellant's disability with the established criteria found in the rating schedule for mental disorders shows that the rating criteria reasonably describes the appellant's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the appellant does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the appellant has required frequent hospitalizations for his mental disorder. Indeed, it does not appear from the record that he has been hospitalized for this condition during the period of time that is covered by this claim. Additionally, there is not shown to be evidence of marked interference with employment solely due to the appellant's service-connected PTSD. The appellant's psychiatric manifestations and symptoms fit within the criteria for a 70 percent rating. Moreover, the appellant has not worked since retiring from his former job. He has not insinuated that his retirement was solely due to or caused by his service-connected PTSD. There is nothing in the record which suggests that the service-connected disability, solely, has markedly impacted his ability to perform a job. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that this service-connected PTSD on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2013) is not warranted. V. TDIU The appellant, through his attorney, has requested a total disability evaluation based on individual unemployability due to his service-connected disabilities. A TDIU may be assigned where the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service member's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2013). Unemployability associated with advancing age or intercurrent disability may not be considered in determining entitlement to a total compensation rating. 38 C.F.R. § 4.19 (2013). Factors to be considered are the appellant's employment history and his educational and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 32, 332 (1991). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad v. Derwinski, 3 Vet. App. 213, 216 (1992); VAOPGCPREC 75-91 (Dec. 27, 1991). The objective criteria, set forth at 38 C.F.R. § 3.340(a)(2) (2013), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. § 4.16(a) (2013), provide for a TDIU when, due to service-connected disability, a service member is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013). In exceptional circumstances, where the appellant does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b) (2013). A TDIU presupposes that the rating for the service-connected condition is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a service member's employability, the Board cannot overlook the level of education he completed, his professional training and employment history. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). Employment is that "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2013). Generally, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. Pursuant to 38 C.F.R. § 4.16(b) (2013), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a) (2013), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (2013). In the present case, the appellant does meet the threshold for schedular consideration because the appellant has been assigned a 70 percent evaluation for his psychiatric disorder (as a result of the Board's action above) and his combined evaluation is 70 percent. The record suggests that the appellant has at least completed four years of high school and has experience working as a lineman with the state power company. He has no other trade experience and the last time he worked at all was in 1998 when he retired. There is no indication from the appellant's claims folder that he has ever received vocational rehabilitation training or any other specialized training. Facts and Discussion The appellant's service-connected disabilities and the ratings assigned to those conditions are as follows: PTSD, rated as 70 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as noncompensably disabling. The appellant's combined evaluation is 70 percent. The appellant and his accredited representative contend that he is unable to maintain substantially gainful employment as a result of the symptoms and manifestations produced by his service-connected disabilities in general. The appellant admits that for many years he worked at a job that he was quite proficient at and that he enjoyed. However, since that time, he has become more reclusive and noncommunicative with others. He believes that the symptoms produced by his PTSD, such a nightmares and sleeplessness, seriously affected his effectiveness and functionability on a daily basis. His hearing loss affects his ability to have contact with others and to communicate in an effective manner. The appellant's records do add some credence to the statements made by the appellant. Of particular note is the vocational consultant's report of July 2013. The evaluator reviewed the appellant's substantial claims file and the miscellaneous psychiatric treatment records that have been prepared over the years. The evaluator concluded that the appellant's PTSD greatly affected his ability to be employed. It was indicated that the appellant would have difficulty working with certain people, and experiencing varying levels and motivation and fatigue. Because, however, the medical records showed a dramatic increase in the symptoms produced by the disorder, the evaluator suggested that the appellant would be precluded in obtaining or maintaining gainful employment. With respect to the miscellaneous treatment records, these records indicate that the appellant has been occasionally treated for complaints involving his service-connected psychiatric disorder and other disabilities for which service connection has not been granted. Yet, these same records do not contain an opinion by a health care provider that suggests or insinuates that the appellant's service-connected disabilities are not so disabling that they prevent the appellant from obtaining and maintaining gainful employment. The Court in Van Hoose v. Brown, 4 Vet. App. 361 (1993) held that for an appellant to prevail in a claim for individual unemployability benefits, it is necessary that the record reflect some factor that takes his case outside the norm. See also 38 C.F.R. §§ 4.1, 4.15 (2013). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high schedular rating that is assigned is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the appellant is capable of performing the physical and mental acts required by employment, not whether he can find employment. Moreover, there is no statute or regulation that requires VA to conduct a job market or employability survey to determine whether a claimant is unemployable because of one or more service-connected disabilities. See Gary v. Brown, 7 Vet. App. 229 (1994); see also Beaty v. Brown, 6 Vet. App. 532, 538 (1994). Unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2013). Marginal employment is not to be considered substantially gainful employment. Factors to be considered, however, will include the service member's employment history, educational attainment, and vocational experience. 38 C.F.R. § 4.16 (2013). Although the medical records are not without some ambiguity, the records do contain at least one very well-written employment analyst opinion concerning the appellant's ability to obtain employment. There are no medical opinions of record that contradict or call into question the conclusions made by the private examiner. Hence, although the entire record is not without a measure of ambiguity due to the appellant's other nonservice-connected disabilities, as noted in the Social Security Administration records, and the documents concerning the appellant's ability to work at a sedentary position where he is isolated from others, the Board concludes that the totality of the evidence in the file appears to be at least in approximate balance. As the Board is unable to conclude that the preponderance of the evidence is against the claim, the claim may not be denied. Therefore, pursuant to 38 C.F.R. § 4.16 (2013), it is the decision of the Board that the appellant's service-connected disabilities render him unable to obtain and maintain gainful employment, and a total disability rating for compensation based on individual unemployability due to his service-connected disorders is warranted. The appellant's claim is granted. (CONTINUED ON NEXT PAGE) ORDER An evaluation of 70 percent, but no higher, for PTSD is granted, from the date of the appellant's claim, subject to the regulations governing the disbursement of monetary benefits. Entitlement to a total disability evaluation based on individual unemployability due to the appellant's service-connected disorders, is granted, subject to regulations governing the payment of monetary benefits. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs