Citation Nr: 1611307 Decision Date: 03/21/16 Archive Date: 03/29/16 DOCKET NO. 08-24 077 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to a higher initial disability rating for posttraumatic stress disorder (PTSD) with major depression in excess of 70 percent. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from May 1971 to March 1973. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the RO in St. Louis, Missouri, which, in pertinent part, granted service connection for PTSD and assigned an initial disability rating of 50 percent from March 29, 2007, the date of claim. The matter was first before the Board in November 2011, where the Board, in pertinent part, granted a higher initial disability rating of 70 percent for PTSD and remanded the issue of an initial rating in excess of 70 percent for PTSD to obtain outstanding documentation. The case was returned to the Board, and in a March 2014 decision, the Board, in pertinent part, denied a higher initial disability rating in excess of 70 percent for PTSD. The Veteran appealed the March 2014 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In a March 2015 Order effectuating a Joint Motion for Partial Remand (JMR), the Court vacated and remanded the Board's denial of a higher initial disability rating in excess of 70 percent for PTSD for action consistent with the terms of the JMR. Specifically, the parties agreed that the Board erred in failing to provide adequate reasons and bases concerning whether the Veteran's mental health symptoms were similar in severity, frequency, and duration to those enumerated in the 100 percent rating criteria. Since the issuance of the last supplemental statement of the case (SSOC) and the March 2015 JMR, additional evidence has been received by the Board for which a waiver of initial RO consideration was provided. 38 C.F.R. § 20.1304 (2015). Such evidence includes medical treatment records, a September 2014 VA mental health examination, and a June 2015 private employability evaluation. Further, in the instant decision the Board discusses the relevant law and evidence and addresses whether the Veteran's mental health symptoms are similar in severity, frequency, and duration to those enumerated in the 100 percent rating criteria. As such, the Board has met its responsibility to fully comply with the Court's order. See Forcier v. Nicholson, 19 Vet. App. 414 (2006) (holding that the duty to ensure compliance with a Court Order extends to the terms of the agreement struck by the parties that forms the basis of the JMR). In a June 2009 rating decision, the RO denied entitlement to a TDIU. The Veteran initially appealed the denial; however, in a subsequent February 2010 Statement in Support of Claim the Veteran withdrew the issue of entitlement to a TDIU. In its March 2014 decision, the Board stated that it was cognizant of the Court's ruling in Rice v. Shinseki, 22 Vet. App. 447 (2009); however, the issue of entitlement to a TDIU was found not to be before the Board at that time as the issue had been withdrawn by the Veteran. This finding was not addressed in the March 2015 JMR. Subsequent to the March 2014 Board decision, on March 21, 2014, VA received a new TDIU claim from the Veteran. The TDIU request was denied in an April 2015 RO rating decision, and the Veteran subsequently filed a notice of disagreement (NOD) to this denial in May 2015. A statement of the case (SOC) has not yet been issued regarding entitlement to a TDIU; however, the Board finds that a SOC is not required in this case because the Board is exercising its jurisdiction derived from the filing of a NOD to grant entitlement to a TDIU, constituting a full grant of the benefit sought on appeal and rendering moot the purpose of the SOC. The NOD with the denial of a TDIU gives the Board the jurisdictional authority to grant the issue, even without issuance of a SOC, which includes granting the issue if all the evidence to do so is already of record. See Manlincon v. West, 12 Vet. App. 238, 240 (1999) (stating that a notice of disagreement is a jurisdiction-conferring document that required remand rather than referral); Roy v. Brown, 5 Vet. App. 554, 555 (1993) ("appellate review of an RO decision is initiated by an NOD"); Marsh v. West, 11 Vet. App. 468, 470 (1998) ("an untimely NOD deprives [BVA] of jurisdiction"); Percy v. Shinseki, 23 Vet. App 37 (2009) (noting that the Board's exercise of jurisdiction over a matter is derived from the notice of disagreement). The purpose of the SOC is rendered moot by the Board's grant of a TDIU. The purpose of the SOC is to provide the Veteran a summary of the evidence, summary of the legal authority, and basis for denial of the claim to allow the Veteran to present written and/or oral arguments before the Board to support the appeal. 38 C.F.R. § 19.29 (2015). Information furnished with the SOC includes notice of the right to file and time limit for filing a substantive appeal to the Board. 38 C.F.R. § 19.30 (2015). As the Board is granting entitlement to a TDIU, constituting a full grant of the benefit sought on appeal, and is effectively waiving the substantive appeal requirement for this Veteran by doing so, the purpose of the notice with the SOC is also rendered moot. See Percy, 23 Vet. App 37 (holding that 38 U.S.C. § 7105(d)(3), which is the governing statute pertaining to the time frame for submitting substantive appeals, is not jurisdictional, so the requirement may be waived by VA actions). The Veteran has appealed from the initial rating assigned for the service-connected PTSD. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court addressed a similar appeal and directed that such appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. FINDINGS OF FACT 1. For the entire initial rating period on appeal, symptoms of the service-connected PTSD with major depression were not of such severity, frequency, or duration to result in total occupational and social impairment. 2. During the relevant period on appeal, the Veteran was unable to obtain or maintain substantially gainful employment as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. For the entire initial rating period on appeal, the criteria for an initial disability rating in excess of 70 percent for PTSD with major depression have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.130, Diagnostic Code 9411 (2015). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. As the instant decision grants entitlement to a TDIU, no further discussion of VA's duties to notify and assist is necessary as to that issue. As this appeal arises, in part, from the Veteran's disagreement with the initial rating following the grant of service connection for PTSD with major depression, no additional notice is required regarding this downstream element of the service connection claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have similarly held that regarding the downstream element of the initial rating that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability rating and effective date has been made, 38 U.S.C.A. § 5103(a) notice is no longer required); 38 C.F.R. § 3.159(b)(3) (no VCAA notice required because of filing of notice of disagreement (NOD)). Regarding the duty to assist in this case, the Veteran was afforded VA mental health examinations for compensation purposes in July 2007, December 2008, October 2009, and September 2014. The examination reports are of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that it is unclear whether the VA examiners reviewed the claims file at all four of the examinations; however, the review of the claims file is not required for purposes of determining whether a higher initial disability rating is warranted, as the reports reflect that necessary testing was conducted, all relevant questions were answered, and the VA examiners relied upon an accurate history and complaints of disability obtained from the Veteran. See VAOPGCPREC 20-95 (stating that the determination as to whether review of prior medical records is necessary in a particular case depends largely upon the scope of the examination and the nature of the findings and conclusions the examiner is requested to provide); Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that a history given by a veteran that has not been found by the Board to be inaccurate is not a basis for discounting an opinion based on that history); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (the claims file is a tool to assist VA examiners to become familiar with the facts necessary to form an expert opinion, it is not a magical or talismanic set of documents). All relevant documentation, including VA treatment (medical) records, has been secured and all relevant facts have been developed. Per the November 2011 Board Remand, the RO attempted to obtain any outstanding Social Security Administration (SSA) documentation. After contacting SSA, which reported that no medical records concerning the Veteran were in its possession, VA issued a formal finding of unavailability in April 2012. There remains no question as to the substantial completeness of the record as to the issue of a higher initial disability rating for the service connected PTSD with major depression in excess of 70 percent. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above. Initial Disability Rating for PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2015). Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Under Diagnostic Code 9411, a 70 percent rating will be assigned for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. A 100 percent rating will be assigned for total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The Global Assessment of Functioning (GAF) is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994). A score of between 1 and 10 is defined as persistent danger of severely hurting self or others (e.g., recurrent violence) or persistent inability to maintain minimal personal hygiene or serious suicidal act with clear expectation of death. A score of between 11 and 20 conveys that there is some danger of hurting self or others (e.g., suicide attempts without clear explanation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute). A score of between 21 and 30 is assigned when behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). A score of between 31 and 40 denotes 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). A score of between 41 and 50 denotes 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). A score of between 51 and 60 reflects moderate difficulty in social, occupational, or school functioning. A score of between 61 and 70 indicates the presence of mild symptoms and/or some difficulty in social, occupational, or school functioning, but a generally satisfactory level of functioning. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266, 267 (1996). The Secretary of VA, 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.A. § 1155; see 38 U.S.C.A. § 501 (West 2014); 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA 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. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). 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 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 American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (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. The schedular rating criteria rate by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." As the Veteran has been assigned a 70 percent disability rating for PTSD with major depression for the entire initial rating period, the Board need only consider whether the evidence shows the symptoms caused total occupational and social impairment for a 100 percent rating at any time during the initial rating period. Having considered all the evidence of record, both lay and medical, the Board finds that, for the entire initial rating period on appeal, symptoms of the service-connected PTSD with major depression were not of such severity, frequency, or duration to result in total occupational and social impairment. In the March 2007 claim, the Veteran advanced symptoms of sleep difficulty, nightmares, agoraphobia, anxiety, and non-social behavior. In an August 2007 statement, the Veteran conveyed having a small landscaping company that brought in less than 400 dollars per month. The Veteran advanced being unable to regularly work and/or to shop at busy times due to anxiety. In the April 2008 NOD, the Veteran conveyed having difficulty with maintaining gainful employment, minimal family contact, impaired impulse control with unprovoked irritability, difficulty adapting to stressful circumstances including work environments, recurrent homelessness, and depression. In the October 2008 substantive appeal, via VA Form 9, the Veteran advanced new mental health symptoms. Such symptoms included severe impairment of thought process and behavior, "speech disorientation," some hallucinations, some suicidal ideation, and avoidance of others. The Veteran conveyed not having worked full time since 1987, and since that time the Veteran was self-employed doing yardwork as a day laborer. A February 2007 VA treatment record reflects that the Veteran advanced symptoms of depression, flashbacks to Vietnam, difficulty sleeping, and nightmares. The Veteran conveyed being divorced twice, with the both divorces being particularly devastating. Upon examination the Veteran was alert, oriented, neatly dressed, and had clear, coherent, and straightforward speech. The Veteran denied hallucinations, paranoid thinking, and suicidal or homicidal ideation. Mood appeared sad. A GAF of 52 was assigned. A March 2007 VA treatment record reflects that upon examination the Veteran was dressed casually, had unremarkable movement/posture, spoke clearly, and was oriented to all spheres. Mood appeared slightly depressed. The Veteran complained of poor concentration and difficulty with recent memory. Thoughts and perceptions were logical and goal directed, and judgment and insight were intact. The Veteran denied delusions, hallucinations, and suicidal or homicidal ideation. The VA examiner noted that these symptoms had disrupted the quality of the Veteran's life in major areas including family, social interaction, and occupation. It was also noted that the Veteran expressed disappointment at not having contact with his twin daughters. A GAF of 50 was assigned. The above symptoms and GAF score were also reported in a subsequent August 2007 VA treatment record. A November 2007 VA mental health intake note reflects that the Veteran was positive for depression without suicidal ideation. A corresponding PTSD screening noted nightmares, avoidant behavior, hypervigilance, and feelings of detachment from others, activities, and/or the surroundings. In a March 2008 mental health note, the Veteran advanced living in a rental home in exchange for handyman work. The Veteran conveyed feeling hopeless and having suicidal thoughts without intent. A GAF of 50 was again assigned. The report of a September 2008 depression screening stated that the Veteran again had suicidal thoughts without intent. In a subsequent October 2008 VA treatment record, a GAF of 48 was assigned. A VA mental health note from January 2009 reflects that while the Veteran denied suicidal ideation, he stated that he had no clear reason for living. The Veteran conveyed having some friends and acquaintances, but very little social contact. At that time the only family the Veteran was in contact with was his son. A GAF of 52 was assigned. Subsequently, a February 2009 VA treatment record noted the Veteran was both depressed and suicidal. Multiple VA mental health treatment records throughout 2009 reflect symptoms and GAF scores similar to those discussed above, but with more noticeable depression and anxiety. It also appears that the Veteran again became homeless during this period of time; however, the Veteran also continued to work odd jobs. In April 2009, the Veteran received a substance abuse and psychosocial assessment. The examination report reflects that the Veteran had a chronic minimal risk of suicide with no imminent risk and no ideation. The Veteran was not homeless at this time. Under psychiatric issues/history, it was noted that the Veteran's depression was between six and eight out of a scale of ten, anxiety was seven out of ten, and anger was between three and four out of ten. There was no previous delirium, thought disorders, personality disorders, language issues, marginal intellect, or psychomotor anomalies. It was noted that the Veteran had been previously diagnosed with mood disorders, panic/anxiety disorders, significant memory deficits, hallucinations or delusions (seeing shadows), disorganized thought/behavior, and a history of violence/assault prior to 1998. Upon examination the Veteran was adequately dressed and groomed, had unremarkable behavior and eye contact, had an euthymic mood, thoughts were logical, linear, and goal directed, there was no indication of remarkable short-term memory deficits, there was orientation to all spheres, fair insight and judgment, and no indication of delusions or unusual beliefs. The Veteran denied suicidal or homicidal ideation. A GAF of 50 was assigned. An April 2010 VA treatment record reflects that the Veteran advanced being angry, irritable, depressed, and anxious. It was noted that the mental health symptoms had a significant impact on the major domains of the Veteran's life, including an inability to maintain significant relationships and avoidant behavior. The Veteran did not have a relationship with his twin daughters at that time. The Veteran advanced being unable to maintain steady employment due to symptoms of hypervigilance, an inability to concentrate, severe anxiety, irritability and anger outbursts, and difficulty working productively with others. Passing suicidal thoughts were advanced; however, the Veteran conveyed having no intent. Upon examination the Veteran's appearance was casual, but disheveled, speech was clear, mood was depressed an anxious, there was orientation to all spheres, judgment and insight were intact, there were no delusions or hallucinations, and thoughts were logical and goal directed. A GAF of 48 was assigned. A June 2010 VA treatment record noted that the Veteran had some social support. The Veteran would see his son on a weekly basis, and he had a friend that he would either see or call on a daily basis. A subsequent November 2010 VA mental health treatment record reflects that the Veteran was going to be spending Thanksgiving with a friend. In July 2011, the Veteran appeared for VA mental health treatment with poor grooming and body odor. A GAF of 53 was assigned at that time. Upon VA medical center (VAMC) examination in May 2012, the Veteran's mental health symptoms had improved, with less anxiety, improved mood, and less sleep difficulties. The Veteran's appearance was casual, speech was clear, mood was bright, there was orientation to all spheres, attention and concentration were fair, thoughts and perceptions were logical and goal directed, judgment and insight were intact, and there was no delusions, hallucinations, and/or suicidal or homicidal ideation. A GAF of 52 was assigned. The Board notes that there are extensive VA treatment records detailing the symptoms and treatment of the service-connected PTSD with major depression beyond those records discussed above, but reflect symptoms and occupational and social impairment consistent with those noted, as reported by the Veteran and noted on examinations and during treatment. Having reviewed all the records, the Board notes that the VA treatment records not specifically itemized reflect PTSD symptoms and occupational and social impairment similar to, and consistent with, those already discussed above, such that a detailed reporting of specific items of evidence in the VA treatment records would not illuminate the symptoms or occupational and social impairment the Veteran experienced during the rating period. The Veteran received a VA mental health examination in July 2007. The examination report reflects that the Veteran advanced difficulty sleeping, distress when exposed to stimuli reminding of Vietnam, avoidant behavior, loss of interest in pleasurable activities, social and emotional withdrawal, sadness, anxiety, anger and irritability, hypervigilance, difficulty functioning in the workplace, difficulty concentrating, and periods of homelessness. The Veteran conveyed having difficulty in the workplace since the manufacturing plant he worked for shut down in 1990. Upon examination the Veteran was alert, oriented, and cooperative. For the previous five years the Veteran had been doing odd jobs and part-time yard work. Mood was anxious and affect was blunted. There was no evidence of delusions or hallucinations. Cognitive abilities were grossly intact, although it was noted the Veteran advanced difficulty with concentration. Suicidal ideation was denied. A GAF of 50 was assigned, which was consistent with the Veteran's reports of regular employment and a great deal of social isolation. A second VA mental health examination was conducted in December 2008. The VA examination report reflects that the Veteran advanced depression, poor concentration, excessive anger and irritation, sleep disturbance, nightmares, guilt, nervousness, social isolation, and panic. The VA examiner noted that since 1990 the Veteran often worked odd jobs including gardening and landscaping and regularly lived either in a truck or with relatives. The Veteran did not have any romantic relationships since divorcing the second wife in 1990. Upon examination, the VA examiner noted that the Veteran was well nourished, dressed casually, and demonstrated appropriate grooming and hygiene. Speech and expression were clear. Affect was sad and nervous, and overall mood was anxious and depressed. Orientation was appropriate and thinking was spontaneous and logical, but the Veteran did ramble on at times. Relationships with others were poor with a low frequency of contact and a preference for being alone. Self-esteem was impaired. Reasoning skills indicated the capacity for abstract thinking with intellectual functioning in the average range. Judgment was diminished by the depression, which led to isolation. At the conclusion of the examination the VA examiner opined that the PTSD currently manifested as intrusive memories, nightmares, diminished interest in normal activity, detachment from others, restricted affect, sleep disturbance, angry outbursts, concentration problems, and hypervigilance. Intensity of the symptoms was severe as to impaired social relationships, marital functioning, occupational achievement, judgment, mood, and range of activities. The Veteran was able to complete daily living tasks. Occupational and social impairment was due to PTSD symptoms of near continuous panic or depression, difficulty adapting to stressful circumstances, panic attacks more than once per week, and difficulty establishing and maintaining effective relationships. A GAF of 48 due to an inability to maintain employment, social isolation, and very limited social tolerance was assigned. The October 2009 report from the Veteran's third VA mental health examination reflects that the Veteran advanced symptoms of depression, suicidal thoughts, poor concentration, excessive anger and irritation, sleep disturbance, nightmares, nervousness, guilt, panic, and an inability to relax. The Veteran conveyed a lack of desire to do anything or deal with anyone, and also advanced having thoughts of driving off a cliff without intention. While the Veteran continued with occasional part-time landscaping and gardening work, virtually no work had been done over the previous two years. The Veteran lived alone and had no visitors, although he would see his son every now and then. Upon examination the Veteran was well nourished, dressed casually, and demonstrated fair grooming and hygiene, although the coat and pants were dirty. Speech was clear, orientation was appropriate, and thinking was logical but disorganized. Affect was sad and overall mood was irritable and depressed. Thought content showed preoccupation with Vietnam and financial difficulties. Relationships with others seemed poor with a low frequency of contact and a preference to being alone. During the interview the Veteran was distractible. Reasoning skills indicated the capacity for abstract thinking with an estimated intellectual functioning level in the average range. Judgment was diminished by the anxiety leading to anger and isolation. At the conclusion of the examination the VA examiner opined that the PTSD manifested as nightmares, diminished interest in normal activities, detachment from others, restricted affect, sleep disturbance, anger outbursts, concentration problems, hypervigilance, and an exaggerated startle response. There was severe impairment in social relationships, occupational functioning, judgment, mood, and range of activities. The led to deficiencies in most areas of occupational and social functioning because of suicidal ideation, near continuous panic and depression, impaired impulse control, neglect of personal appearance and hygiene, difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships. A GAF of 48 due to isolation, low social tolerance, and suicidal thoughts was assigned. A fourth and final VA mental health examination was conducted in September 2014. The examination report reflects that at that time the Veteran was living with a friend and was continuing landscaping work. The Veteran advanced having difficulty concentrating to the point were reading was difficult, social isolation, anger, irritability, and hypervigilance. Under relevant occupational history, the VA examiner noted that the Veteran had been doing part-time work landscaping since 1995. The Veteran advanced continuing to work two to three hours per day, earing five to six thousand dollars per year. Upon examination the Veteran had symptoms of depressed mood, anxiety, suspiciousness, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. The VA examiner opined that the Veteran's symptoms were severe enough to result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood; however, the symptoms did not result in total occupational and social impairment. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of an initial disability rating in excess of 70 percent (a total 100 percent rating) for the service-connected PTSD. For the entire initial rating period on appeal the Veteran's PTSD was not productive of total occupational and social impairment. As the Board has previously acknowledged, the Veteran's PTSD symptoms have resulted in significant social and occupational impairment, hence, the 70 percent disability rating that recognizes serious symptoms and serious occupational and social impairment that affects various aspects of the Veteran's life; however, the evidence of record does not reflect that at any time the symptoms were so severe as to cause total occupational and social impairment to warrant a 100 percent total disability rating. The Board notes that the Veteran either does not have the significant, to the point of debilitating, symptoms contemplated by a total 100 percent rating, or the symptoms that are present are not of similar severity, frequency, and/or duration as to those symptoms contemplated by a total 100 percent disability rating. The aforementioned VA treatment records and medical examinations have not reflected that the Veteran had gross impairment in communication, grossly inappropriate behavior, or disorientation to time or place. While the Veteran has had some thought difficulties/disorganizations and memory loss, the evidence reflects such identified cognitive issues have not been severe or "gross" on a level contemplated by a total 100 percent disability rating. As to personal hygiene issues, while a few records have noted issues such as body odor and soiled clothing, the vast majority of the records noted proper hygiene. Further, these instances may have been related to the Veteran's various periods of homelessness, rather than directly caused by the mental health symptoms. There is some indication of anger issues and past suicidal ideation without intent; however, the evidence reflects that the Veteran is not in a persistent danger of hurting himself or others. While there is an indication that the Veteran had past visual hallucinations (seeing shadows), the evidence of record does not reflect that such hallucinations are as serious and/or persistent to a level contemplated for a total disability rating. The Board has considered all of the other symptoms discussed above, including their severity, frequency, and duration. In evaluating these symptoms, the Board finds that the severity, frequency, and duration are more appropriately consistent with the symptoms contemplated by a 70 percent disability rating. For example, at the most recent VA examination, the VA examiner identified significant symptoms of depressed mood, anxiety, suspiciousness, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Then, considering the relevant evidence, the VA examiner opined that these symptoms reflected occupational and social impairment with deficiencies in most areas, the criteria for a 70 percent disability rating. Such a finding is supported by the medical evidence and VA examination reports throughout the course of this appeal. Additional evidence also supports the Board's finding that social and occupational impairment was not total. As to the social aspect, the Veteran has had multiple divorces, no relationship with his twin daughters, and he avoids social contact as much as possible; however, the Veteran currently lives with a friend, has a friend that he would connect with on a daily basis, and he has maintained a relationship with his son. Such evidence reflects that the Veteran's social impairment is not total. As to occupational impairment, for approximately the past twenty years, since losing full time employment, the Veteran has worked part-time for himself as a landscaper. In its decision below, the Board finds that such employment is not "substantially gainful" and awards a TDIU; however, substantially gainful or not, the landscaping work was still employment for which the Veteran was paid. At the most recent VA mental health examination, the Veteran advanced being able to work for two to three hours per day, earning five to six thousand dollars per year. As such, it cannot be said that the Veteran has total occupational impairment when, by his own admission, he is able to work ten or more hours per week. Further, the lowest GAF score recorded was a 48. While this is a general assessment of overall severity of symptoms or overall degree of impairment by one of many examiners, when interpreted in the context of all the evidence in this case showing the actual symptoms and actual degree of occupational and social impairment, it does not demonstrate the severe symptoms or total occupational and social impairment required for a 100 percent total disability rating. See 38 C.F.R. § 4.2 (2015) ("It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present."). Considering the above, including the severity, frequency, and duration of the identified mental health symptoms, the Board finds that that the PTSD related symptoms do not more nearly approximate the symptoms contemplated for a 100 percent total disability rating, and, more importantly, the symptoms do not produce the total occupational and social impairment required for a 100 percent total disability rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. For these reasons, the Board finds that the preponderance of the evidence is against the appeal for a higher initial rating for PTSD in excess of 70 percent for any period. 38 U.S.C.A. §§ 1155; 38 C.F.R. §§ 4.3, 4.7, § 4.130, Diagnostic Code 9411. Extraschedular Consideration The Board had also considered whether an extraschedular rating is warranted for the service-connected PTSD with major depression. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran'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 veteran'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 veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet App 111 (2008). With respect to the first prong of Thun, the evidence in this instant appeal does not establish such an exceptional disability picture as to render the schedular rating inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria found in 38 C.F.R. § 4.130, Diagnostic Code 9411, reflects that the diagnostic criteria reasonably describe the Veteran's disability level and symptomatology and degree of occupational and social impairment. The diagnostic criteria convey that compensable ratings will be assigned for PTSD which manifests by various levels of occupational and social impairment. The Veteran's disability picture has been shown to encompass occupational and social impairment based on symptoms that fall within the diagnostic criteria for a 70 percent rating for the rating period on appeal. Symptoms and social and occupational impairments of the PTSD include depressed mood, anxiety, suspiciousness, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, anger, suicidal ideation without intent, and difficulty in adapting to stressful circumstances, among other symptoms discussed above. All the impairment and symptoms are either explicitly part of the schedular rating criteria or are "like or similar to" examples or symptoms in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The GAF scores, which are incorporated into the schedular rating criteria as part of the DSM-IV, assess the degree of overall occupational and social impairment. The evidence in this case includes GAF scores ranging from 48 to 53, which reflect an overall assessment of severity of symptoms or degree of occupational and social impairment, which is relevant to the degree of occupational and social impairment upon which PTSD is rated. For these reasons, the Veteran's service connected PTSD has not been shown to be productive of an exceptional disability picture; therefore, the Board determines that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not merited. According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above. In the absence of exceptional factors associated with PTSD with major depression, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The issue of entitlement to a TDIU is addressed below. Entitlement to a TDIU Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is 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 in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. 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). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a) (2014). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). In this case, for the relevant period on appeal, the combined schedular disability rating eligibility criteria for a TDIU under 38 C.F.R. § 4.16(a) have been met. In March 2007, the Veteran had a combined schedular disability rating of 70 percent, to include the following service-connected disabilities: PTSD with major depression, rated as 70 percent disabling, and tinnitus, rated as 10 percent disabling. As the Veteran had a single disability rated 40 percent or more (PTSD), and as the combined schedular disability rating was 70 percent, the eligibility requirements of 38 C.F.R. § 4.16(a) were met as of March 2007. After reviewing all the evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's service-connected disabilities prevent obtaining or maintaining substantially gainful employment. As discussed above, during the relevant period on appeal the Veteran worked for himself as a landscaper. Per the September 2014 VA mental health examination, this earned the Veteran approximately five to six thousand dollars per year. The Board does not find this to constitute substantially gainful employment for purposes of determining whether entitlement to a TDIU is warranted. See Faust, 13 Vet. App. 342. In July 2015, VA received an affidavit from the Veteran detailing the PTSD symptoms that he believed rendered him unemployable. The Veteran advanced the PTSD symptoms prevented him from regularly leaving the house, caused difficulty with coworkers, resulted in issues with authority, and caused the Veteran to have little desire and/or motivation to work. VA also received a June 2015 private employability evaluation. The private evaluation reflects that the evaluator reviewed the record and conducted a phone interview with the Veteran to obtain an accurate picture of the Veteran's educational, vocational, medical, and financial history. In reviewing the Veteran's pertinent history, the vocational evaluator noted that the Veteran's part time jobs never resulted in earning more than $10,000 in any one year. Due to symptoms of depression, lack of motivation, anxiety, interpersonal inappropriateness, and anger management, it was impossible for the Veteran to be a reliable and dependable worker. The Veteran had trouble keeping appointments, getting along with clients, and soliciting work. When working for others, the Veteran would often be fired or walk off the job due to an inability to deal with conflict. After a complete review of all the relevant evidence of record, the private evaluator opined that it was at least as likely as not that the Veteran's service-connected disabilities, primarily the PTSD with major depression, prevented securing or following a substantially gainful occupation. The private evaluator thoroughly explained the reasoning behind the opinion, and stated that it was based upon her experience and expertise as a certified, rehabilitation counselor holding a master's degree in health for over 25 years. The evaluator advanced having testified in over 5,000 SSA disability cases as an expert witness in the field of work and disability. Resolving reasonable doubt in the Veteran's favor, the Board finds that the service-connected disabilities prevent the Veteran from obtaining or maintaining substantially gainful employment. Considering the Veteran's past VA mental health treatment, the VA mental health examinations, and the June 2015 private employment evaluation, the Board finds that the Veteran's severe PTSD with major depression symptoms prevent the obtaining or maintaining of substantially gainful employment. For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that entitlement to a TDIU is warranted. 38 C.F.R. §§ 3.340, 3.341, 4.15, and 4.16. ORDER For the entire initial rating period on appeal, a higher initial disability rating for PTSD with major depression in excess of 70 percent is denied. A TDIU is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs