Citation Nr: 1417602 Decision Date: 04/18/14 Archive Date: 05/02/14 DOCKET NO. 10-29 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Evaluation of posttraumatic stress disorder (PTSD), rated as 10 percent disabling prior to September 1, 2010. 2. Evaluation of PTSD, rated as 30 percent disabling effective September 1, 2010. 3. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service- connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1978 to February 1988 and from November 1990 to May 1991. This matter was originally before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision rendered by the Fort Harrison, Montana, Regional Office (RO) of the Department of Veterans Affairs (VA. In July 2011, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ). In December 2011, the Board issued a decision that in part denied the appealed claim of a total disability evaluation based on individual unemployability. Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F. 3d 1312 (Fed. Cir. 2013), the Board's December 2011 decision was identified as having been potentially affected by an invalidated rule relating to the duties of the VLJ that conducted the July 2011 hearing. In order to remedy any such potential error, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board. Subsequently, the Veteran requested only to have the prior decision vacated and a new one issued in its place. This decision satisfies that request. FINDINGS OF FACT 1. Prior to September 1, 2010, PTSD was manifested by anger/rage, irritability, anxiety, depression, difficulty trusting others, memory problems, concentration problems, hypervigilance, alienation, intrusive thoughts and avoidance. 2. At his July 2011 hearing, the Veteran expressed that he wished to withdraw his appeal for an evaluation higher than 30 percent disabling for PTSD. 3. The Veteran's service-connected disabilities do not render him unable to obtain and retain substantially gainful employment. CONCLUSION OF LAW 1. Prior to September 1, 2010, PTSD was 30 percent disabling. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130; Diagnostic Code (DC) 9411 (2013). 2. The criteria for withdrawal of the appeal for an evaluation higher than 30 percent disabling for PTSD have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.204, 20.1404 (2013). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the Veteran with the notice required under VCAA by letters dated in July 2007 and June 2011. The Board notes that the Veteran is challenging the disability evaluation assigned following the grant of service connection. In Dingess, the U.S. Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, supra. at 490-191. Moreover, in July 2011, the Veteran was afforded a hearing conducted before the undersigned Veterans Law Judge (VLJ). At the start of the hearing, the VLJ confirmed the issues on appeal. During the hearing, there was discussion regarding additional evidence. This action supplements VA's compliance with the VCAA and satisfies 38 C.F.R. § 3.103. Thus, VA's duty to notify in this case has been satisfied. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). VA has also satisfied its duty to assist the appellant under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. In connection with the current appeal, available service treatment records have been obtained. We also note that the Veteran has been afforded appropriate and adequate VA examinations as they reflect a pertinent medical history, review of the documented medical history, clinical findings, a diagnosis, and opinions supported by medical rationale. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. PTSD Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Here, the Board finds that the Veteran's disability has not significantly changed and that a uniform rating is warranted. The Secretary, acting within his authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under-or over-inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant 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. Mauerhan v. Principi, 16 Vet. App. 436 (1992). The Veteran's PTSD is evaluated pursuant 38 C.F.R. § 4.130 Diagnostic Code 9411, and is subject to the criteria listed under the General Rating Formula for Mental Disorders. The General Rating Formula provides a 10 percent evaluation for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130 (2013). The rating formula provides a 30 percent evaluation when 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, and recent events). A 50 percent evaluation is warranted where 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 or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech 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); inability to establish and maintain effective relationships. A 100 percent evaluation is indicated where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase 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 disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. In assessing the evidence of record, it is important to note that the GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 31 to 40 is assigned where there is 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 younger children, is defiant at home, and is failing at school). Id. A score of 41-50 is assigned where there are 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). Id. A score of 51-60 is assigned where there are 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, conflict with peers or co- workers). Id. A score of 61-70 is indicated where there are 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, has some meaningful interpersonal relationships. Id. PTSD Prior to September 1, 2010 The Veteran has appealed the assignment of a 10 percent rating for PTSD prior to September 1, 2010. The current rating contemplates occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. To warrant a higher rating the evidence must show 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). Here, evaluations conducted in March 2007 revealed that the Veteran was oriented and at times displayed a moderately flat affect. He denied suicidal ideation. The Veteran's Readjustment Counselor, K.R., stated in April 2007 that the Veteran rated high on multiply symptoms including anger/rage, irritability, anxiety, depression, difficulty trusting others, emotional constriction or numbing, hypervigilance, alienation, intrusive thoughts and memories, loss of interest in pleasurable activities, isolation, low tolerance to stress, problems with authority, sleep disorder, problems with self esteem and alcoholism. Per K.R., testing clearly indicated the presence of PTSD. In May 2007, the Veteran was described as well oriented and with a mildly depressed affect. He denied suicidal ideation but was reported having hallucinations. In June 2007, the Veteran presented with a cleaned up appearance somewhat but still lacked good hygiene. He was described as easily startled and with almost constant hypervigilance. He expressed being angry in July 2007 about not being able to get a job. In August 2007, the Veteran had an incident where he came home and proceeded to tear apart the kitchen for no apparent reason. The counselor recommended inpatient treatment for his PTSD but he refused. Examination in March 2009 revealed that the Veteran was laid off in 1997 as a warehouseman and was unemployed. He was married with grown children. Examination revealed he was oriented, speech was normal, affect solemn, mood dysthymic, thought process linear and logical, insight was good, and his judgment was sound. Depressive disorder, rule out PTSD was diagnosed. A GAF score of 58 was assigned. In the June 2009 VA examination, the Veteran appeared polite and courteous, he presented well socially and had no unusual behaviors or mannerisms. He did not appear guarded or defensive and expressed himself well during the interview. He appeared to be of average intelligence and without any cognitive difficulties. His grooming and hygiene were satisfactory. He reported being married for 28 years and indicated that there was stress in the marriage because of financial problems. Per the Veteran, his wife loved him and they had a good relationship. He was involved in raising his grandchildren and had friends. One friend in particular came over all the time to visit. When employed, he got along well with others on the job and would often get together with co-workers outside the work setting for social events. He was employed until 1997 or 1998. He stopped working because his job was sold to another company. Thereafter, he was involved in two car accidents. He expressed that he began to develop depression sometime after returning from the Gulf. He described his mood as low more than half of the time. He had sleep problems and a low appetite. He used to enjoy fishing but his desire to fish decreased. He related that he attempted suicide a number of years ago but only had occasional suicidal thoughts but without plan or recent attempts. He denied any nightmares but described night sweats and indicated that his sleep was nonrestorative. He described being significantly more apprehensive and jumpy after returning from the Gulf. He also described hypervigilance, being guarded, difficulty being around crowds, occasional intrusive thoughts and avoidance. He complained of memory loss. However, he was able to give a good longitudinal history which suggested his long term memory was intact. His immediate memory was shown to be fairly intact. The examiner stated that it was more likely than not that his memory problems best described in terms of reduced concentration were possibly secondary to his depression and mild PTSD. Examination revealed a full ranging and appropriate affect, he was composed and mildly dysphoric, and did not appear to be in psychological distress. He tracked the conversation well and had no impairment of concentration or attention span. Psychomotor activity was within normal limits, his memory was functionally intact, and thinking was logical and goal directed. Mild PTSD was diagnosed and a GAF score of 65-70 was assigned based solely on the diagnosis of PTSD. The examiner related that his PTSD symptoms occurred rarely and were of mild severity. A GAF score of 55 would be appropriate according to the examiner if the Veteran's major depression was also taken into consideration. The examiner stated that the Veteran's signs and symptoms were mild and decreased work efficiency and ability to perform occupational tasks would occur only during times of significant stress. Per the examiner, the Veteran was able to sustain employment after he returned from the Gulf War but that work ended because the company was sold and closed down. He was thereafter involved in two accidents that resulted in medical/physical problems which the Veteran indicated prevented his return to other types of employment. The examiner related that the Veteran demonstrated good social skills during the interview and should be able to interact well with co-workers and supervisors. He was found to be intellectually capable and capable of completing work duties in a timely manner without the need for a great deal of support or supervision. He had reduced stress tolerance and indicated that he became irritable and withdrew under the impact of stress. Such was found to not be at a level that would preclude his engaging in all types of work activity. The examiner related that the Veteran has been able to maintain a long term marital relationship and was capable of normal activities of daily living within the limits imposed by his medical conditions and depression. He was found to be able to live independently and he took care of his own needs. He also participated in the raising of his grandchildren. It was also shown that he has some pleasurable activities. The examiner stated that his ability to function in a job setting may be further reduced by his depression and physical issues but that his depression did not appear to be service connected. In a July 2009 evaluation, the Veteran expressed having problems with his memory to include losing things and forgetting things. Examination revealed he was functioning in the low average range of intelligence. Mild cognitive disorder and mild PTSD were diagnosed. A GAF score of 65 was assigned. The Veteran reported in November 2009 that he was not sleeping through the night. He was without suicidal ideation. He related having problems with depressed mood, anxiety, memory and concentration. Examination revealed his speech was normal, insight average, orientation intact and general appearance average. The Veteran related in July 2010 that he could hardly get out of bed and that he felt that the whole world was out to get him. He expressed that he would rather die than live this way. The Veteran reported in July 2010 that he was without suicide ideation. He related having problems with depressed mood, anxiety, sleep, impulsivity, and concentration. Examination revealed his speech was normal, insight average, orientation intact and general appearance average. A GAF score of 60 was assigned. In the September 2010 VA examination, the Veteran reported problems with sleeping and unprovoked anger. The Veteran was not working and expressed that he has not been able to handle a job since 1998 and even less so after his two car accidents. He reported a stable marriage despite fights over a course of 30 years. He lived with his wife, daughter and grandchildren. He had a few friends but usually stayed isolated. He did not have a history of violence in the past year and/or domestic violence. He had occasional suicidal ideation but without plans. He presented as a fairly small man who looked older than his stated age. He mostly showed depressive affect and was a difficult historian. There was no clear evidence of a formal thought disorder. Communication was just fair in terms of comprehension and clarity of his own communication. He reported no auditory hallucinations but some visual phenomena as shadows and flashes. His grooming was substandard and dress somewhat ragged. He reported poor recall of timeframes and activities that he may have done in the recent past. He denied ritualistic behaviors that interfered with routine activities other than to isolate himself in his room. He described reexperiencing, panic attacks, hyperarousal, triggered anxiety reactions, sleep problems and depression. He did not describe intrusive thoughts or flashbacks. He had daily avoidance of thoughts, feelings and conversations. He reported avoiding crowds if at all possible and a general lack of interest. The VA examiner related that the Veteran described PTSD symptoms as at least at a moderate level and some at severe, although overall he rated his symptoms as the same as previously. The examiner had no doubt that the Veteran's current complaints were a mixture of PTSD and depression. PTSD, moderate and chronic, and moderate major depressive disorder were diagnosed. A GAF score of 60 was assigned based on PTSD and a score of 55 was assigned for major depressive disorder. The examiner opined that the Veteran suffered from PTSD leading to 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 with chronic sleep impairment and mild memory loss. The examiner stated that the Veteran's PTSD is part of the original service connected disability but major depressive disorder and other clinical problems are not. In the July 2011 hearing, it was stated that the Veteran's disability has not significantly changed and that a uniform 30 percent evaluation was warranted. The Veteran reported weekly, if not daily, panic attacks. Per the Veteran, his wife separates him from his grandchildren when he gets agitated. At which point, he goes behind a locked door away from them. The Veteran stated that his wife was helpful in monitoring his triggers. He reported having one friend whom he hangs out with. He also hangs out with his family. The Veteran expressed having thoughts of suicide and that he gets to a point where he does not care. It was stated that his symptoms have been ongoing. Based on the evidence presented, the Board finds that a 30 percent rating for PTSD is warranted prior to September 1, 2010. In this regard, during this period of time the Veteran presented with anger/rage, irritability, anxiety, depression, difficulty trusting others, emotional constriction or numbing, hypervigilance, alienation, intrusive thoughts and memories, loss of interest in pleasurable activities, isolation, low tolerance to stress, problems with authority, sleep disorder, memory problems and problems with self esteem. He was shown to be mildly depressed and at times lacked good hygiene. He also reported an incident of unprovoked anger and fleeting thoughts of suicide without a plan. Reduced concentration was shown and he reported having hallucinations in a May 2007 examination. These findings justify a 30 percent rating. Furthermore, while an examiner's classification of the level of a psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage disability rating to be assigned (38 C.F.R. § 4.126), it is notable that for the period considered in this appeal the appellant's GAF scores have ranged between 58 and 70, denoting mild to moderate symptoms. In the view of the Board, the GAF scores are consistent with the Veteran's PTSD symptomatology and the assignment of a 30 percent rating. We find that an evaluation of 30 percent disabling is warranted for this time frame. In this regard, we find that the Veteran has presented competent and credible testimony regarding his PTSD. However, while we find that the criteria for a 30 percent rating is warranted, the findings summarized above does not justify an evaluation in excess of 30 percent disabling. Stated differently, the medical and lay evidence as well as the GAF scores establish that 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). However, the manifestations, even when accepted as credible, do not establish occupational and social impairment with reduced reliability and productivity. During this time frame, the Veteran remained in a stable marriage, helped raise his grandchildren and reported having friends. As such, he was able to establish and maintain effective relationships. While he was unemployed, such was not attributed to his PTSD but rather non service related factors. He reported having problems with his memory and concentration but examination in June 2009 found he was able to give a good longitudinal history which suggested his long term memory was intact and his immediate memory was shown to be fairly intact. Examinations during this time frame also revealed that he was oriented, had normal speech, and his thought process was linear and logical. His insight and judgment were also good. Although he reported having problems with depressed mood, anxiety, sleep, impulsivity, and concentration, such findings do not warrant a 50 percent evaluation when all the other manifestations are considered. See Mauerhan, supra, 16 Vet. App. 436. In sum, prior to September 1, 2010, the Veteran's symptoms were more characteristic of a disability picture that is contemplated by a 30 percent rating and no more. We have also considered referral for an extraschedular rating. Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Here, the Board finds that the record reflects that the Veteran has not required frequent periods of hospitalization for his disability and that the manifestations of the disability is contemplated by the schedular criteria. Therefore, there is no reason to believe that the average industrial impairment from the disability would be in excess of that contemplated by the schedular criteria. Therefore, referral of the case for extra- schedular consideration is not in order. PTSD From September 1, 2010 Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Withdrawal of an appeal may be made by either the appellant or by his or her authorized representative. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. It must include the name of the veteran, the applicable VA file number, and a statement that the appeal is being withdrawn. 38 C.F.R. § 20.204 (2013). At his July 2011 hearing, the Veteran expressed that he was satisfied with the 30 percent evaluation for PTSD effective September 1, 2010. He related that he was only dissatisfied with the 10 percent rating assigned prior to September 1, 2010. The Board finds that such qualifies as a valid withdrawal of the appeal in accordance with the provisions of 38 C.F.R. § 20.204. In light of the Veteran's withdrawal of the appeal for an evaluation higher than 30 percent disabling for PTSD, effective September 1, 2010, there remains no allegation of error of fact or law for appellate consideration. Therefore, the Board does not have jurisdiction to review the claim and it is dismissed. TDIU The Veteran has appealed the denial of TDIU. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board observes that a claim for TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420-21 (1999). A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. The record indicates that the Veteran is currently service-connected for PTSD, evaluated as 30 percent disabling, tinnitus evaluated as 10 percent disabling and left ear hearing loss evaluated as 0 disabling. His combined evaluation is 40 percent. The 40 percent rating does not meet the minimum percentage rating required for consideration of assignment of TDIU. 38 C.F.R. § 4.16(a). Therefore, TDIU on a schedular basis cannot be established. However, entitlement to TDIU may been considered on an extraschedular basis when it is shown that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service- connected disabilities. 38 C.F.R. § 4.16(b). In this case, the Board is presented with positive and negative evidence regarding whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service connected disabiities. The positive evidence includes his July 2007 assertions that he was angry about not being able to get a job. Also, the September 2010 VA examiner opined that the Veteran suffered from PTSD leading to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran stated in his July 2011 hearing that he could not work because of the plates and screws in his neck from a car accident. Per the Veteran, his records show that he cannot work an eight hour work day. The Board has considered such statements in conjunction with the evidence of record. However, the Board is presented with convincing negative evidence. In this regard, in March 2009 it was related that the Veteran was laid off in 1997 as a warehouseman and was unemployed. In June 2009, the Veteran reported that he became unemployed when his job was sold to another company. He also related that he was involved in a car accident after his job ended and then he was involved in a second accident. He did not seek employment after his job ended. He attributed much of that to his back and neck problems as well as breathing problems. Per the Veteran, when employed he got along well with others on the job and would often get together with co-workers outside the work setting for social events. The VA examiner stated that the Veteran's signs and symptoms were mild and decreased work efficiency and ability to perform occupational tasks would occur only during times of significant stress. Per the examiner, the Veteran demonstrated good social skills during the interview and should be able to interact well with co-workers and supervisors. The examiner also related that the Veteran was able to sustain employment after he returned from the Gulf War but that work ended because the company was sold and closed down. He was found to be intellectually capable and capable of completing work duties in a timely manner without the need for a great deal of support or supervision. Based on the evidence presented, the Board finds that the preponderance of the evidence is against the claim. In this regard, the evidence is devoid of a showing that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service connected disabilities, to include his service connected PTSD. The Veteran has been seen by many healthcare providers. However, at most, the September 2010 VA examiner opined that the Veteran suffered from PTSD leading to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. While it was found that his PTSD may intermittently interfere with his occupational tasks, it has not been determined that his PTSD, or a combination of service-connected disabilities, renders him unable to engage in a substantially gainful occupation. In fact, the Veteran was employed from his separation from service until 1997. At that time, the company that he worked for was sold and closed down. Thereafter, he was involved in two motor vehicle accidents causing him physical problems which the Veteran indicated prevented his return to other types of employment. Significantly, we note that the June 2009 VA examiner found that the Veteran demonstrated good social skills during the interview and should be able to interact well with co-workers and supervisors. He was found to be intellectually capable and capable of completing work duties in a timely manner without the need for a great deal of support or supervision. We also note that when he was working, the Veteran got along well with his co-workers and even interacted with them outside of work. The Board acknowledges the Veteran's has reported having problems with depressed mood, anxiety, sleep, impulsivity, concentration and at times unprovoked anger. However, while PTSD, tinnitus and hearing loss may interfere with some aspects of his employment, any schedular rating implies some degree of interference with employment. The evidence in this case does not demonstrate an inability to engage in substantially gainful employment. The Board is also mindful that throughout this appeal the Veteran has been unemployed and that he has been unemployed since 1997. However, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. Although the Veteran genuinely believes that he cannot secure or follow a substantially gainful occupation as a result of his service-connected disabilities, the more probative evidence is against the claim. The Board notes that, as a lay person, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as whether he can secure or follow a substantially gainful occupation as a result of his service connected disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has afforded great probative value to the opinions of the VA medical professionals, who examined the Veteran and reviewed the claims folders. Per the Veteran's own statements and the VA examiners, the Veteran's inability to maintain employment has been attributed to non-service related factors to include his two motor vehicle accidents. We acknowledge that the June 2009 VA examiner stated that the Veteran's ability to function in a job setting may be further reduced by his depression. However, we note that the Veteran is not service connected for depression. In sum, the Board finds that the Veteran's service connected disabilities do not preclude substantially gainful employment. Therefore, a grant of TDIU is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER A 30 percent rating for PTSD prior to September 1, 2010 is granted. The appeal for an evaluation higher than 30 percent disabling for PTSD is dismissed. TDIU is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs