Citation Nr: 1451136 Decision Date: 11/18/14 Archive Date: 11/26/14 DOCKET NO. 07-11 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD), prior to May 7, 2010. 2. Entitlement to a rating in excess of 70 percent for PTSD, from May 7, 2010. 3. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to February 14, 2006. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from October 1963 to October 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which granted service connection for PTSD and assigned a 30 percent rating, effective from May 2, 2005; and denied entitlement to a TDIU. In a January 2007 rating decision, the RO granted a 50 percent rating for PTSD from May 2, 2005. The Veteran testified before a Decision Review Officer at a January 2007 hearing at the RO. In October 2007, the Veteran also testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of each hearing is of record. In an October 2008 decision, the Board denied the claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2009 Order, the Court granted the parties' Joint Motion for Remand, vacated the Board's October 2008 decision, and returned the matter for readjudication. In a March 2010 decision, the Board again denied the claims. The Veteran appealed the Board's decision to the Court. In a November 2010 Order, the Court granted the parties' Joint Motion for Remand, vacated the Board's March 2010 decision, and returned the matter for readjudication. In May 2011, the Board remanded the case to the AOJ for further evidentiary development. On remand, the RO granted entitlement to a TDIU, effective February 14, 2006. Subsequently, in a notice of disagreement dated in July 2013, the Veteran asserted that an earlier effective date of May 2, 2005, the date he filed a claim for PTSD, is warranted for the grant of the TDIU. The RO issued a statement of the case (SOC) in July 2014, which denied an effective date prior to February 14, 2006 for TDIU. Although, the Veteran did not file a timely substantive appeal in response to the July 2014 SOC, a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The Board observes that in essence, the Veteran is claiming entitlement to a TDIU for the period prior to February 14, 2006, and the claim for an effective date earlier than February 14, 2006 for TDIU is encompassed in the claim for a TDIU prior to February 14, 2006. As such, despite the lack of a timely substantive appeal, in light of Rice, the Board deems that the issue of entitlement to a TDIU prior to February 14, 2006, is properly before the Board, as listed on the title page of this decision. FINDINGS OF FACT 1. Prior to July 6, 2009, the Veteran's PTSD was manifested by symptoms productive of functional impairment comparable to occupational and social impairment with reduced reliability and productivity with difficulty establishing and maintaining effective work and social relationships. 2. From July 6, 2009, the Veteran's PTSD has been manifested by symptoms productive of functional impairment comparable to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. 3. Prior to February 14, 2006, the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent, prior to July 6, 2009, for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). 2. The criteria for a rating of 70 percent, but no higher, from July 6, 2009 to May 6, 2010, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). 3. The criteria for a rating in excess of 70 percent from May 7, 2010, for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). 4. The criteria for a TDIU, prior to February 14, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The issue of entitlement to a higher initial rating for service-connected PTSD arises from the Veteran's disagreement with the initial disability rating assigned to this condition following the grant of service connection. Once service connection is granted the claim is substantiated, additional VCAA notice is not required. 38 C.F.R. § 3.159(b)(3) (2013). Rather, the Veteran's appeal as to the initial rating assignment here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here, as the Veteran was issued a copy of the rating decision on appeal, and a statement of the case which set forth the relevant diagnostic codes for rating the disability at issue, and included a description of the rating formulas for all possible schedular ratings under these diagnostic codes. Furthermore, a VA letter issued in April 2007 satisfied the duty to notify provisions with respect to increased ratings, including TDIU, and notified the Veteran of the regulations pertinent to the establishment of an effective date and disability rating. The issues were readjudicated thereafter. The Board concludes that VA's duty to assist has also been satisfied in this case. The RO has obtained the Veteran's service treatment records and his post service treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO also provided the Veteran appropriate VA examinations in August 2005 and November 2011, to ascertain the current severity of his PTSD. See Green v. Derwinski, 1 Vet. App. 121 (1991). Each VA examiner discussed the history of the Veteran's PTSD, conducted a clinical examination of the Veteran, and elicited information from the Veteran concerning the functional aspects of his PTSD. As they provide sufficient detail to determine the current severity of the Veteran's service-connected disability, the Board finds that the VA examinations obtained in this case were adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the Veterans Law Judge who conducts 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. During the Veteran's RO and Board hearings, the Veteran was assisted at the hearing by his private attorneys. The representatives and the Decision Review Officer (DRO)/Veterans Law Judge (VLJ) solicited information regarding any outstanding evidence pertinent to the claims on appeal and asked questions to ascertain the current state of the Veteran's PTSD and the disability's effects on employability. The hearings focused on the evidence necessary to substantiate the Veteran's claims for increased rating and TDIU. No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or the representatives. Therefore, the Board finds that, consistent with Bryant, the DRO/VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). PTSD Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Further, a disability rating 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 is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. This appeal originates from a rating decision that granted service connection and assigned the initial rating. Accordingly, "staged" ratings may be assigned, if warranted by the evidence. Fenderson v. West, 12 Vet. App. 119 (1999). Service connection for PTSD was granted in a September 2005 rating decision effective from May 2, 2005, with an initial rating of 30 percent. As such, the rating period on appeal for the initial rating for PTSD is from May 2, 2005. 38 C.F.R. § 3.400(o)(2) (2013). However, in accordance with 38 C.F.R. §§ 4.1 and 4.2 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the history of a disability is for consideration in rating a disability. In a January 2007 rating decision, the RO granted a 50 percent rating for PTSD from May 2, 2005. In a September 2012 rating decision, the RO increased the rating for PTSD from 50 percent to 70 percent for the period from May 7, 2010. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Veteran's PTSD is evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Codes 9411. Ratings are assigned according to the degree of occupational and social impairment resulting from manifestations of the disability at issue. However, the use of the term "such as" in 38 C.F.R. § 4.130 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 rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the provisions for rating psychiatric disorders, a 50 percent disability rating requires evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). A 70 percent 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 work like setting; inability to establish and maintain effective relationships.). Id. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the VA must 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 (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). See Mauerhan, 16 Vet. App. 436. Within the DSM-IV, Global Assessment Functioning (GAF) scores are 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). While not determinative, a GAF score is highly probative as it relates directly to the veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). According to DSM-IV, a GAF score ranging from 31-40 reflects 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 GAF score of 41-50 reflects 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). GAF score of 51-60 represents 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). A GAF score of 61-70 denotes 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. A GAF score of 71-80 indicates 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). Prior to July 6, 2009 In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that prior to July 6, 2009, the Veteran has not manifested symptoms of PTSD that more nearly approximate the criteria for a higher 70 percent rating, as will be discussed below. Hence, a higher initial rating is not warranted at any time during this time frame. In short, the Board finds that the Veteran's PTSD resulted in functional impairment most comparable to occupational and social impairment with reduced reliability and productivity with difficulty establishing and maintaining effective work and social relationships, due to such symptoms as depression with crying spells, anhedonia, disturbances of motivation and mood, restricted affect, anxiety attacks, flashbacks, nightmare, intrusive thoughts, hyperarousal, hypervigilance, hyper startle response, avoidance behaviors, and impaired impulse control with periods of irritability. However, the Veteran's total disability picture did not rise to the severity required for a 70 percent or higher rating, prior to July 6, 2009. In regard to occupational impairment, an August 2005 VA examination report noted the Veteran retired from his job at Ford Company in 1998, significantly after a 30-year career, and had not been working for the past seven years. A lay statement from a former coworker of the Veteran, dated in November 2007, stated that he had to calm the Veteran down at work so the Veteran would not physically harm a supervisor on one occasion. This statement also reflected that the former coworker observed that the Veteran did not associate with other co-workers. However, the Board points out that the Veteran completed a 30-year career with the same company-demonstrating significant ability to work independently, manage his time, complete tasks, and maintain some effective relationships with the people that he worked with during such a long time span. In regard to the Veteran's social impairment, an October 2005 affidavit by the Veteran reveals that he was suspicious of people and that he will not eat out unless it is at a local Burger King, with which he was familiar. When he ate out, he reported that he sat in a position so that he can see as many people as possible. He also specifically noted that it was difficult for him to adapt to any stressful circumstances so he avoids stress at all costs. However, a September 2006 VA psychiatric treatment report revealed a recent stressor included the death of his mother in June 2006 and that he had been her caregiver; he also lost his dog during that time period. The August 2005 VA examination report also reflects that the Veteran has two children from his first marriage and two more children from his second marriage. As an example of his difficulty establishing or maintaining relationships, the Veteran reported an incident with his step-granddaughter at the October 2007 Board hearing. He also testified at the January 2007 RO hearing that he would rather be around animals than people and that "I'm my best friend." An October 2005 statement by the Veteran's daughter indicated that her parents have had trouble being civil to one another and noting that the Veteran had no close friends. Based on the foregoing, the record reflects that the Veteran had difficulty establishing and maintaining effective work and social relationships, but, critically, he had been able to maintain and establish these relationships. The Veteran testified at the October 2007 Board hearing that he has been married to his second wife for 26 years. In the October 2005 affidavit, he commented that his marriage had become rockier, but the record does not reflect that they were separated or divorced. He also testified that he did not feel secure in his marriage-but the problems seemed to be economical. In fact, the record contains numerous entries denoting that his spouse's financial spending, particularly after his retirement from Ford Motor Company, had become an issue between them. Specifically, an October 2007 VA treatment record noted "financial stressors related to wife's use of his funds." The Veteran also remarked in his October 2005 affidavit that he had two people in his life that he would turn his "life's savings over to and would feel confident . . . that everything would still be intact." Moreover, the Board observes that the VA treatment records indicate that the Veteran had actively engaged in group therapy and conducted himself in an appropriate and effective manner during his participation. He did not disrupt the group, act inappropriately, or decline to participate. Accordingly, while the Veteran had shown some difficulty in social relationships, the fact that he maintained social interaction with at least two friends, a spouse, children, grandchildren, and animals also demonstrates that he did not have an inability to establish and maintain effective relationships. Further, the record is devoid of evidence indicating deficiencies in judgment or thinking. Concerning this, the Board finds it significant that no abnormalities were found with regard to the Veteran's thought process, speech and communication at any of his VA treatments or during the August 2005 VA examination. The August 2005 VA examination reflects that the Veteran had fair insight and judgment with recent and remote memory also intact. The August 2005 VA examination report also reflects that he denied suicidal/homicidal ideation, as well as delusion paranoia, and auditory/visual hallucinations. His speech was normal and his thought process was logical and sequential. A May 2007 VA outpatient note revealed that there were no safety concerns in relation to the Veteran and he did not exhibit any psychotic symptoms. There is no indication that the Veteran was delusional, grossly inappropriate, disoriented, in persistent danger of hurting himself or others, or was unable to perform the activities of daily living. The August 2005 VA examination report noted that the Veteran was fully oriented and a January 2007 VA psychiatric medication report noted that the Veteran was reliable and had good eye contact. During the August 2005 VA examination and VA mental health treatment appointments, prior to July 6, 2009, the Veteran has been described as casually dressed and neatly groomed. A November 2006 VA psychiatric medication management report noted that the Veteran was neatly groomed and casually dressed. The Veteran reported impaired impulse control with unprovoked irritability and violence. Specifically, he testified at the RO hearing that he was "real touchy" and "pretty easily set off." He described an incident where he confronted another driver. However, the record does not reflect that the Veteran had been arrested or charged with assault. There had been no instances reported in the medical records when law enforcement was called or required due to the Veteran's violence. There is also no reported or anecdotal evidence that he has physically abused his spouse or children. Consequently, the manifestations of the Veteran's PTSD symptoms did not cause him social and occupational impairment with deficiencies in most areas, such impairment in work, family relations, judgment, thinking, or mood that would warrant a higher 70 percent rating at any time prior to July 6, 2009. Further, based on all of the foregoing, the Board finds that the Veteran's overall disability picture most nearly approximates the criteria for the 50 percent rating because he did not demonstrate the level of functional impairment necessary for a 70 percent rating, such as suicidal ideation, illogical speech, neglect of personal appearance and hygiene, near-continuous panic or depression with an inability to engage in activities of daily living, spatial disorientation, or an inability to establish and maintain effective relationships. In reaching this determination, the Board has taken into consideration the GAF scores reported in the medical reports. In this regard, the Board emphasizes that a GAF score in and of itself does not entitle a veteran to a particular disability rating. Rather, GAF scores are one factor to be used in consideration of all of the evidence of record. The GAF scores reported in the medical records range from 42 to 55, which are indicative of moderate to severe symptomatology associated with a mental impairment such as PTSD. In this regard, the criteria outlined for a 50 percent rating also contemplates moderate to severe symptomatology and accounts for the symptoms that the Veteran experiences as a result of his PTSD. Significantly, upon VA examination in August 2005, the Veteran's GAF was estimated to be 50, and upon a mental status evaluation in September 2006, it was 55. These scores were rendered by psychiatrists after a thorough inventory of the Veteran's mental status and a full accounting for his symptoms. The lower scores of 42 and 47 were rendered by a licensed counselor and social worker. Hence, the Board finds that the GAF scores rendered by the psychiatrists to be more probative because they were assigned based on a more thorough mental status evaluation and by individuals who have greater medical training and expertise. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998) (It is the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another); Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data); Massey v. Brown, 7 Vet. App. 204, 208 (1994) (the Board's consideration of factors which are wholly outside the rating criteria provided by the regulations is error as a matter of law). In conclusion, the Board concludes that the Veteran's disability picture is not compatible with the functional impairment contemplated by the next higher 70 percent rating prior to July 6, 2009. In fact, the treatment reports submitted by the Veteran's attorney indicate that the Veteran largely discontinued his psychiatric medications as well as his counseling sessions without any discernible increase in his underlying symptomatology. Consequently, the Board finds that the currently assigned 50 percent rating prior to July 6, 2009 appropriately reflects the clinically established impairment experienced by the Veteran. From July 6, 2009 Based on a thorough review of all of the evidence of record, the Board finds that the functional impairment resulting from PTSD most closely approximates the criteria for a 70 percent disability rating from July 6, 2009. 38 C.F.R. § 4.7. In reaching this determination, the Board finds it significant that the November 2011 VA examiner, who conducted a comprehensive psychiatric assessment of the Veteran, diagnosed PTSD, and estimated that his GAF score was 40, which is indicative of serious symptoms or serious impairment in social or occupational functioning, such as no friends, unable to keep a job. The November 2011 VA examiner explained that the Veteran's GAF score of 40 was due to his almost chronic symptoms of continuous depressed mood. While he was not currently suicidal, he had major impairment in numerous areas, including depressed mood, avoidance of virtually all relationships, irritability to the point of causing extreme marital strain. He had lost interest in almost all activities and had difficulty being motivated to maintain his hygiene beyond the minimum. He experienced extreme sleep impairment and almost continual recurrent thoughts of his Vietnam stressors, which he attempted to avoid by keeping the television or radio on for 24 hours a day. The examiner noted that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner further noted that the Veteran's PTSD symptoms had significantly worsened since his last examination in August 2005. The Veteran reported that his symptoms worsened after coming to group therapies at the VA because of the numerous veterans in the group "bragging their exploits." Significantly, the examiner stated that the Veteran's GAF score of 40 was largely consistent with his most recent GAF scores in July 2009 and in April 2010. Therefore, a 70 percent rating for PTSD is granted from July 6, 2009. However, the Veteran's total disability picture does not rise to the severity required for a 100 percent rating. In this regard, the Board finds that functional impairment comparable to total social and occupational impairment has not been shown in this case. The record reflects that the Veteran has been married to his second wife for 35 years. The November 2011 VA examination report reflects that the Veteran has two adult sons but they do not come by very often; they were busy with their own lives. The Veteran stated that when he visited his sons he only stayed for 15 minutes because he did not feel comfortable. His relationship with his adult stepchildren was a bit better. He also stated that he used to have a few friends but they died. He did "keep up" with his brother and saw him 3 times a year. He was found to be capable of managing his financial affairs. Significantly, the November 2011 VA examiner did not find near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impairment of short- and long-term memory; difficulty in understanding complex commands; impaired judgment or abstract thinking; difficulty in adapting to stressful circumstances, including work or work-like setting; or inability to establish and maintain effective relationships. Accordingly, while the Veteran has shown substantial social and occupational impairment, to the extent that such impairment has not been destructive to his family and social life, the evidence does not demonstrate total social and occupational impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Nor does the credible lay and medical evidence demonstrate gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, or disorientation to time and place, as reflected by the November 2011 VA examination report. See id. On mental status examination, the Veteran was fully oriented and his speech was within normal limits. His thought process and thought content were normal. The Veteran did not have inappropriate behavior or episodes of violence; he denied suicidal or homicidal ideation. He denied delusions, hallucinations, obsessions, compulsions or panic attacks. His concentration was poor, but he was able to concentrate through the interview to stay focused and answer the examiner's questions. He understood the outcome of his behavior and that he had a problem. As such, the evidence does not support a finding of total occupational and social impairment that is the criteria for a 100 percent rating for PTSD. Accordingly, considering evidence in totality, the Board finds that the Veteran's disability picture more nearly approximates the criteria for the 70 percent disability rating, and therefore the 70 percent rating is the appropriate rating from July 6, 2009. 38 C.F.R. § 4.7. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1) (2013). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The schedular ratings in this case are adequate. The diagnostic criteria contemplate and adequately describe the functional impairment due to symptomatology of the Veteran's service-connected PTSD. See Thun, 22 Vet. App. at 115. The Veteran's PTSD is evaluated by the rating criteria which specifically contemplate the level of occupational and social impairment caused by this disability. See 38 C.F.R. § 4.130, Diagnostic Code 9411. When comparing the Veteran's psychiatric symptoms and social and occupational impairment with the schedular criteria, the Board finds that his symptoms are congruent with the disability picture represented by the ratings assigned herein and he does not have symptoms associated with this disability that have been unaccounted for by the schedular ratings. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Accordingly, a comparison of the Veteran's symptoms and functional impairment resulting from his psychiatric disability with the pertinent schedular criteria does not show that his service-connected PTSD presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Consequently, the Board finds that the available schedular ratings are adequate to rate the Veteran's PTSD. Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). As such, referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. The issue has been reviewed with consideration of whether further staged ratings would be warranted. While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected PTSD, there is no evidence of record that would warrant ratings in excess of those assigned herein for his PTSD during the rating periods on appeal. See Fenderson, 12 Vet. App. at 126. Rather, the medical evidence of record reflects that the Veteran had similar psychiatric symptoms which appear to have remained relatively stable throughout each rating period under appeal. The Board notes that under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), no additional symptoms are shown that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against assigning increased ratings for the Veteran's PTSD, the doctrine is not for application. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU Total disability is considered to exist when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). If there is only one disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to February 14, 2006, service connection was in effect for PTSD, rated as 50 percent disabling; and scar from shell fragment wound of the 4th finger of the right hand, rated as noncompensable. The Veteran's combined disability rating was 50 percent. See 38 C.F.R. § 4.25 (2013). As such, the Veteran did not meet the minimum schedular criteria for a TDIU, prior to February 14, 2006. 38 C.F.R. § 4.16(a). Furthermore, for the Veteran to prevail on his claim for TDIU, the record must reflect that he is precluded from engaging in substantially gainful employment consistent with his education and occupational experience, due solely to his service-connected disabilities. The sole fact that the Veteran claimant is unemployed or has difficulty obtaining or following employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). Here, on his TDIU application (VA Form 21-8940), received in May 2005, the Veteran indicated that his service-connected PTSD prevented him from securing or following any substantially gainful occupation. The Veteran indicated that he last worked in an automobile factory at the Ford Motor Company in 1998. He did not indicate when he became too disabled to work or whether he left his last job because of the disability. He indicated that he had a 7th-grade education and had not gone to college, but earned a GED. However, an August 2005 VA examination report reflects that the Veteran retired from the Ford Company in 1998 and he had not been working in the last 7 years. During the VA examination, he reported current symptoms of nightmares, flashbacks, and depression and that all of his PTSD symptoms had been increased since his retirement from the Ford Company in 1998. He related that he was able to bury all his symptoms of PTSD and depression until he retired from his job where he was working for 12 hours a day, 7 days a week. On mental status examination, the Veteran was casually dressed, with fair eye contact. No psychomotor agitation or retardation was shown. His speech was normal and he was fully oriented. He denied any suicidal or homicidal ideation, delusion, paranoia, and hallucination. His thought process was logical and sequential. His recent and remote memory was intact and he could perform serial 7's. His judgment and insight was fair. Regarding functional capacity, the examiner found that the Veteran's symptoms of PTSD were moderately affecting his functioning. VA treatment records dated from August 2005 through February 2006 show that the Veteran had been attending psychiatry group and individual psychotherapy sessions. He reported symptoms of poor sleep, nightmares, anhedonia, irritability, depressed mood, and avoidance behaviors. Affidavits from the Veteran and his wife and son, dated in October 2005, show the Veteran's symptoms of hypervigilance, avoidance behaviors, no interest in establishing new friendship, inability to trust people, hyper startle response, depression, irritability, difficulty sleeping, panic and anxiety attacks, nightmares, flashbacks, difficulty with memory and concentration, severe mood swings, crying spells, social isolation and withdrawal, and difficulty adapting to any stressful circumstances. After carefully reviewing the pertinent evidence of record, the Board finds that the probative evidence does not reflect that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, prior to February 14, 2006. In arriving at this conclusion, the Board recognizes that the Veteran's service-connected PTSD had moderate impact on his occupational functioning. To that effect, the August 2005 VA examiner, regarding functional capacity, found that the Veteran's symptoms of PTSD were moderately affecting his functioning. However, the evidence of record does not show that the Veteran was unable to secure and follow substantially gainful employment by reason of his service-connected disabilities. The record reflects that the Veteran retired from his job at the Ford Company in 1998 where he had worked for 30 years, but he did not leave the job because of his PTSD disability. Rather, he reported that he was able to bury all his symptoms of PTSD and depression until he retired from his job and his PTSD symptoms had been increased since his retirement. To that effect, during his January 2007 RO hearing, the Veteran testified that "I did keep awful busy at work. ... But one thing I will say is that at the conclusion of my 30 years of work, I wasn't doing very well out there. People were starting to get to me. ... I'd tell my wife, I'd go to work and say, today is the day I've had all I'm going to take. I'm just not going to take it anymore, and she'd say, please, Ronnie, don't do anything. You'll lose your job and you're so close, you know. But whenever I called them in Detroit about retiring, when do you want to get out ? I said, the minute, the second, that I can." The Veteran further testified that once he did retire, he had a lot of time to start thinking and remembering his stressors and he started experiencing trouble sleeping. The Board considered the lay statements of record in regard to the Veteran's PTSD symptoms causing social impairment. Although a lay person is competent to report observable symptoms he experiences, as a lay person he or she is not competent to provide a medical opinion concerning whether the Veteran is unable to work due to his service-connected disabilities. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, the Board finds these statements are largely consistent with the findings by the August 2005 VA examiner who concluded that the Veteran's symptoms of PTSD were only moderately affecting his functioning. As such, the probative evidence of record does not establish that the Veteran was unable to secure or follow substantially gainful employment, consistent with his educational and occupational experience, due to his service-connected disabilities. The Board notes that the Veteran has a GED degree. Although the record reflects that the Veteran's work history involved physical occupational settings, the file contains no evidence that the Veteran would have been unable to secure and maintain substantially gainful employment of similar type due to his service-connected PTSD or scar on the right 4th finger. The scar has not been shown to be symptomatic, unstable, disfiguring or to have resulted in functional impairment. VA clinical records do not reflect that the Veteran has required treatment for his scar. Accordingly, a TDIU is not warranted. As the preponderance of the evidence is against entitlement to a TDIU, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. (CONTINUED ON NEXT PAGE) ) ORDER Entitlement to an initial rating in excess of 50 percent for PTSD, prior to July 6, 2009, is denied. Entitlement to a rating of 70 percent, but no higher, for PTSD, from July 6, 2009 to May 6, 2010, is granted. Entitlement to a rating in excess of 70 percent for PTSD, from May 7, 2010, is denied. Entitlement to a TDIU, prior to February 14, 2006, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs