Citation Nr: 1332834 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-39 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based on individual unemployability due to the appellant's service-connected disorder (TDIU). REPRESENTATION Appellant represented by: New Hampshire State Veterans Council ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active military service from November 1969 to January 1971. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction of the appellant's case is currently with the VA RO in Togus, Maine. In April 2011, the Board remanded the appellant's claim to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary and procedural development. As the development performed was deemed inadequate, another remand was ordered in February 2013. Upon reviewing the development in toto, the Board now finds there has been substantial compliance with its remand instructions. The Board notes that the United States Court of Appeals for Veterans Claims (Court), has concluded that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall [v. West, 11 Vet. App. 268 (1998)] violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). The record indicates that the Board, through its instructions in its two remands, sought to obtain medical information concerning the severity of the appellant's psychiatric disorder. The Board also requested that the appellant's Social Security Administration (SSA) records be obtained and included in the claims folder, which has been accomplished. Finally, the Board requested that the claim be reviewed by the Director of Compensation Services and a determination made as to whether the appellant should be awarded an extraschedular evaluation for his psychiatric disorder. All such development has been accomplished and the AMC then issued a Supplemental Statement of the Case that confirmed the VA's previous denial. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of the Board's Remands. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Therefore, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2013). FINDINGS OF FACT 1. The appellant's service-connected PTSD is manifested by symptoms including impaired concentration, irritability, sleeplessness, anxiety, and isolation, with Global Assessment of Functioning (GAF) scores ranging from 50 to 65. Due to this disability, the appellant is withdrawn from others and is unable to work with others. Nevertheless, the disability is not manifested by total occupational and social impairment. 2. Service connection is only established for PTSD. 3. The evidence of record indicates that the appellant has in excess of four years of college, along with two master's degrees. However, for many years, the appellant has worked part-time, and no more than twenty hours a week, as a security guard. 4. The appellant's service-connected psychiatric disorder precludes him from obtaining and maintaining 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 his service-connected disability 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 The appellant seeks a disability rating in excess of 50 percent for his service-connected psychiatric disorder. He also has asked that a total disability evaluation be assigned. The Board initially notes that it has thoroughly reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-1 (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 claim. The appellant 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 appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Increased Disability Evaluation A. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify and Assist The 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 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) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable rating 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). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). As a claim for an increased initial rating is a downstream issue from that of service connection, he bears the burden of demonstrating prejudice resulting from defective VCAA notice. See Goodwin v. Peake, 22 Vet. App. 128 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). Moreover, as the instant decision grants an award of TDIU, any notice deficiency with respect to that claim is moot. The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the appellant's claims files. The RO has obtained the appellant's service treatment records, as well as VA medical records. Pertinent medical records have also been obtained from the Social Security Administration (SSA). See Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). He was also afforded VA medical examinations in April 2008, April 2009, and July 2012. The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and are adequate for purposes of this appeal. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007)(affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the appellant's claim. The Board is not aware, and the appellant (or his accredited representatives) has not suggested the existence of, any additional pertinent evidence not yet received or attempted to obtain. Based on the foregoing, the Board finds that the appellant has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. The Board would add that in conjunction with his claim for benefits, the appellant's paperless Virtual VA claims file has been reviewed. Virtual VA claims files are a highly secured electronic repository that is used to store and review documents involved in the claims process, and it is noted that there are no additional documents in the Virtual VA file not already contained in the paper claims file. B. Laws and Regulations Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (2013), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (2013). If there is a question as to which disability rating to apply to the veteran's disability, the higher rating 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 (2013). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The appellant's service-connected PTSD has been rated 50 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). PTSD is rated under the General Rating Formula for Mental Disorders, which provides that: A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. A 70 percent disability rating is warranted 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 worklike setting); inability to establish and maintain effective relationships. A 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. The symptoms noted in the rating criteria for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased disability rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2013). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2013). In evaluating psychiatric disorders, VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130 (2013). As such, the diagnosis of a mental disorder should conform to DSM-IV. See 38 C.F.R. § 4, 125(a) (2013). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). An examiner's classification of the level of psychiatric impairment, by GAF score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. A GAF of 31 to 40 is defined as exhibiting some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any 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). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as 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). See 38 C.F.R. § 4.130 (2013) [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. C. Facts and Discussion Service connection is in effect from January 8, 2007. The relevant evidence of record includes a VA examination performed in April 2008. At that time, the appellant complained of "anxiety, panic, depression, loss of self-esteem, terrible shame and guilt, trust of people, fear of feelings." He further stated that he experienced nightmares, flashbacks, hypervigilance, and that he did not want others to touch or grasp him. The appellant further indicated that he was taking prescription medication for the control of the symptoms and manifestations of the psychiatric disorder, and that he was receiving counseling once a month. The appellant also told the examiner that he had been employed but that the employment was part-time. When the appellant was examined, the examiner noted the following: . . . His behavior was tense and rigid. His speech was slow and hesitant. His mood was anxious and depressed. His affect was appropriate to his mood. There are no indications of depersonalization. There is evidence of derealization. He denies hallucinations or illusions. His thought process tends to be circumstantial, but he is easily redirected to the topic at hand. There are no preoccupations or obsessions, no delusions. He does have suicidal ideation of a passive nature, no homicidal ideation. He is oriented x 3. He is functioning in the above-average range of intelligence. His attention and concentration as well as short-term and long-term memory appear to be commensurate with age. Ability for abstract and insightful thinking is within the normal range. Common sense reasoning as judgment of as well as moral and ethical thinking is also within normal limits. The patient reports getting about six or seven hours of sleep each night, "sometimes good, sometimes bad." Apparently, he has bad dreams at least once a week that wake him up. . . . As far as his temper, he has to control it with other people. He has a tendency to "fly off the handle." He feels depressed "sometimes." He feels anxious "sometimes." His panic attacks are situational, triggered by events that happened to him in the military. .... It is evidence that his traumatic events have intruded upon his thought process. They disturb his sleep through bad dreams and nightmares. The only person he really trusts is his wife. He can't really get close to other people. He has fear of strangers, fear of large crowds, fear of dark rooms. He has an exaggerated startle response and some difficulties with anger and irritability. Upon completion of the examination, the appellant was diagnosed with PTSD along with "specific phobias secondary to PTSD." A GAF score of 55 was assigned. The examiner further found that the PTSD symptoms moderately to severely impaired employment functioning and moderately interfered with social functioning. Nevertheless, the examiner did opine that the appellant could work in a job, such as he had then (a twenty hour, part-time security guard job), where he worked alone and where the people he worked with knew of his psychiatric difficulties. Upon VA examination in April 2009, the Veteran endorsed lethargy, nightmares, and depression. He described his relationship with his wife as "good." He had an "excellent" relationship with two of his three step-children, and a "terrible" relationship with the third. He endorsed passive suicidal ideation and denied homicidal thoughts. On mental status examination, his mood was anxious and depressed. There were no hallucinations or delusions and his thought process was logical and goal-directed. Short and long term memory were within normal limits. He had normal insight and abstract thinking ability. He startled easily and was working on controlling his temper. A GAF score of 50 was assigned. He had reduced reliability and productivity due to PTSD. Another psychiatric examination was accomplished in July 2012. The examination report listed a diagnosis of PTSD with a GAF score of 55. It was further noted in the report that the appellant had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner wrote that the appellant's appearance was appropriate, although his behavior was tense and mood anxious. There were no preoccupations, obsessions, or delusions. Sleeplessness, along with nightmares or bad dreams, was documented. Finally, the examiner reported the appellant's complaints of irritability, depression, and anxiety. The examiner further listed the appellant's symptoms and manifestations produced by his PTSD, including: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships. The examiner also hypothesized that the appellant was able to "obtain and maintain gainful employment." However, the examiner found that it would be better if the appellant could work alone or only with one other person, and that the appellant should not have much interaction with the general public. Also of record are the appellant's counseling records that have been amassed by his long-time counselor. Of particular note is a letter dated from January 2013. In that letter, the counselor surmised the following: . . . it became clear to me that he does meet some of the criteria for a higher evaluation of 70 percent in that he does, in fact, have difficulty in adapting to stressful circumstances and there is an inability to establish and maintain effective relationships. Again, this veteran has not worked a 40-hour work week since 2000. His last held position was at a security company and he typically worked 16 to 24 hours weekly. He has not worked since March, 2011. [The appellant] hold two Masters degrees, though his interpersonal issues typically preclude him from functioning at a position commensurate with his intellectual abilities. Also contained in the claims folder is a psychologist's assessment dated in May 2009. The examiner prepared the examination report in conjunction with the appellant's claim for disability services including those provided by the Social Security Administration (SSA). During the examination, the appellant denied flashbacks, hallucinations, or plans to hurt others or himself. The examiner did not address whether the appellant was experiencing depression, irritability, difficulty sleeping, and social isolation. Nor did the examiner discuss any impairment in social, interpersonal, and vocational functioning. Nevertheless, the examiner assigned a GAF score of 65-70. 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 throughout the rating period on appeal. The evidence shows that the appellant has depression, anger-management problems, sleep deprivation, hypervigilance, nightmares, and irritability. The appellant has a strained relationship with his wife and reports little to no social contact with others. The record further indicates that the appellant suffers at least some, if minimal, memory loss and he also has depression, irritability, difficulty concentrating, hypervigilance, exaggerated startle response, intrusive thoughts, restricted/constricted affect, anxiety, and anger outbursts. In addition, GAF scores have largely been in the 50 to 65 range indicating, at worst, very serious impairment. While a 70 percent rating is found to be warranted here, the next-higher 100 percent rating is not justified because the appellant's PTSD is not productive of total occupational and social impairment. Indeed, the appellant does not have gross impairment in thought processes or communication. He has not been shown to have a circumstantial thought process and he does not have gross impairment in thought process. In addition, no deficits have been noted with respect to the appellant's speech and communication skills. He has not exhibited grossly inappropriate behavior and, despite passive suicidal ideation contemplated by the 70 percent evaluation, the appellant has not been shown to be in persistent danger of hurting himself or others. It was noted that he is occasionally verbally abusive to others 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. Moreover, he is oriented to time and place. Although the appellant has some memory impairment, he does not have memory loss for the names of close relatives, previous occupation, or his own name. 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 with his wife and immediate family. Accordingly, total social impairment is not shown. Although the medical evidence suggests 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. D. 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. Accordingly, referral for extraschedular consideration is not warranted in this case. II. TDIU The appellant has requested a total disability evaluation based on individual unemployability due to his service-connected disability. 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, 33 (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 and his combined evaluation is 70 percent. The record reflects that the appellant has completed four years of high school and has two Masters Degrees. However, he has no practical experience in the areas of studies in which he received his degrees. For the past eight years, the appellant has been employed, part-time, as a security guard. He has no other trade experience and it is unclear when the last time the appellant worked full-time. There is no indication from the appellant's claims folder that he has ever received vocational rehabilitation training or any other specialized training. C. Facts and Discussion The appellant's is service-connected for PTSD, rated as 70 percent disabling. His nonservice-connected disorders include sciatica, seborrheic keratosis, colonic polyps, cervical radiculopathy, degenerative joint disease, and seborrheic keratosis. 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 disorder. The appellant admits that for many years he worked at a job that he was quite proficient at and that he enjoyed; however, he no longer works at that job because the company went out of business. He has worked as a security guard because it is part-time, nondemanding, and he does not have to deal with people. In support of such statements is the medical report of January 2013 prepared by the appellant's health care provider. In that note, the provider concluded that the appellant could only work part time and was incapable of full time employment. Another report made four years earlier, by the same health care provider, conclusively and without reservation indicated that the appellant was unemployable. The examiners who provided the medical reports of April 2008, April 2009 and July 2012 all pointed out that the appellant was employed or had been recently employed. They appeared to reason that since the appellant was working or had been recently working, he was certainly able to obtain and maintain gainful employment. However, neither of those examiners discussed the fact that the appellant was only working part-time and at a menial job. With respect to the outpatient treatment records, such indicate complaints involving his service-connected psychiatric disorder as well as other disabilities for which service connection has not been granted. However, they do not specifically show that the treatment received or the medications taken for his PTSD categorically prevent him from working. 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). In determining whether a TDIU 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. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When evaluating the appellant's service-connected disability and its effect on his ability to obtain and maintain gainful employment, the Board is mindful that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102 (2013) (which requires that reasonable doubt be resolved in the appellant's favor) dictates that such signs and symptoms be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181 (1998). The Board concludes that the reasoning found in Hodges v. Brown, 5 Vet. App. 375 (1993), applies to this case. Although the medical records are not without some ambiguity, the records do contain at least two long-time health care provider's opinions 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 examiner when one considers the type of employment and training the appellant has previously had/obtained. Hence, although the entire record is not without a measure of ambiguity due to the appellant's other nonservice-connected disabilities and the paucity of 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 PTSD renders him unable to obtain and maintain gainful employment, and a total disability rating for compensation based on individual unemployability due to his service-connected disorder 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 disorder, is granted, subject to regulations governing the payment of monetary benefits. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs