Citation Nr: 1635502 Decision Date: 09/12/16 Archive Date: 09/20/16 DOCKET NO. 11-29 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for ischemic heart disease. 2. Entitlement to service connection for chronic fatigue. 3. Entitlement to service connection for phlebitis. 4. Entitlement to service connection for sinus tachycardia. 5. Entitlement to service connection for neurogenic bladder. 6. Entitlement to service connection for sleep apnea. 7. Entitlement to an increased disability rating for posttraumatic stress disorder (PTSD), to include the issue of the propriety of the reduction of the disability rating from 100 to 70 percent, effective February 1, 2011. 8. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from November 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2010 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). Issues one through six are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At the time of the rating reduction and throughout the rating period on appeal, the Veteran's PTSD has been productive of, at most, significant, but not total, occupational and social impairment, with deficiencies in most areas. 2. The Veteran is rendered unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The reduction in rating for PTSD from 100 percent to 70 percent was proper, and the criteria for a disability rating in excess of 70 percent have not been met for any part of the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107, 5112 (West 2014); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.321, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2015). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for PTSD There is no question that a disability may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The provisions of 38 C.F.R. § 3.105 apply to rating reductions. 38 C.F.R. § 3.105(e) requires that, when a reduction in evaluation of a service-connected disability is considered warranted, and a reduction will result in a decrease in payment of compensation benefits being made, a rating proposing reduction will be prepared setting forth all material facts and reasons. The beneficiary will be notified and furnished detailed reasons therefore and given 60 days for presentation of additional evidence to show that compensation payments should be continued at the current level. If additional evidence is not received within that period, a final rating action will be taken and the award will be reduced effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Additionally, under 38 C.F.R. § 3.105(i), the advance written notice concerning a proposed rating reduction must inform the beneficiary that he has a right to a predetermination hearing provided that a request for such a hearing is received by VA within 30 days from the date of the notice. The procedural framework and safeguards set forth in 38 C.F.R. § 3.105 governing rating reductions are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The Veteran does not contend, and the evidence does not reflect, any failure in compliance with the procedural requirements for rating reductions. The proper procedure was followed for effectuating a reduction in this matter. Turning to the merits of the rating reduction, the law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). These provisions prohibit a reduction on the basis of a single examination. See Brown, 5 Vet. App. at 417-18. Where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) are inapplicable, as set forth in 38 C.F.R. § 3.344(c). In such cases, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344(c); 3.343(a). In the present case, the Veteran's 100 percent rating, which was reduced to 70 percent in the November 2010 rating decision on appeal, had been in effect for longer than five years. As a result, the requirements under 38 C.F.R. § 3.344(a) apply to this case. Specifically, the evidence of record must be reviewed to determine if it is reasonably certain that there was improvement in the Veteran's PTSD that will be maintained under the ordinary conditions of life. Id. In addition, the Court has held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. Moreover, the Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran's disability." Brown at 420 (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." See Brown at 421. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show that the disability has worsened. A rating reduction case focuses on the propriety of the reduction, and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer, 2 Vet. App. at 281-282. The question of whether a disability has improved involves consideration of the applicable rating criteria. The Veteran's PTSD has been evaluated under Diagnostic Code 9411, found in 38 C.F.R. § 4.130. Under the general formula for rating mental disorders, a 70 percent disability rating is assigned where 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent schedular evaluation contemplates 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. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score in the range of 41 to 50 represents "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A GAF score in the range of 51-60 indicates "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)." Id. A GAF score in the range of 41 to 50 represents "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A GAF score in the range of 31 to 40 indicates "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). Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. At 443. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, service connection for PTSD was granted in a November 2002 rating decision. An initial 30 percent disability rating was assigned, effective from October 31, 2001. In a February 2004 rating decision, the RO granted an increased, 100 percent, disability rating, effective from July 10, 2003. The 100 percent disability rating was based primarily on the results of a September 2003 VA examination, at which the Veteran reported worsening symptoms of anxiety and depression. He also reported symptoms including intrusive thoughts, nightmares, flashbacks, irritability, anger outbursts, difficulty concentrating, hypervigilance, and exaggerated startle response. He stated that he had previously been employed for two years stacking shelves in a grocery store prior to stopping work in 1996 to care for his son. Prior to that, he worked at a chemical factory for eighteen years, but quit just prior to receiving his pension because he had an anger outburst. He was described by the examiner as being pleasant and cooperative. His speech was normal, and thought processes were logical and goal-oriented. He described his mood as angry, and his affect was slightly depressed with a somewhat constricted range of emotions. He denied suicidal or homicidal ideation and hallucinations. Insight and judgment were intact. The VA examiner concluded that the Veteran experienced severe impact of occupational and social functioning as a result of his PTSD symptoms, forcing him to leave employment and abandon previous relationships. Moreover, the examiner stated that he was unable to maintain employment due to anger outbursts, and assigned a GAF score of 40, reflecting major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. The February 2004 rating decision advised the Veteran that there was a likelihood of improvement in his PTSD, and that the assigned 100 percent disability rating was not considered permanent and was subject to a future review examination. In February 2005, VA initiated a review of the PTSD rating. In a May 2005 rating decision, the RO stated that, although recent evidence showed some improvement in his PTSD when compared to the previous September 2003 VA examination, sustained improvement had not been definitively established. Thus, the 100 percent disability rating was continued. The RO cited to the results of an April 2005 VA examination, at which the Veteran reported ongoing nightmares, intrusive thoughts, and social isolation. He reiterated that his irritability and angry outbursts had created problems in most of the jobs he had held. At the time, the only treatment he was engaged in was group therapy. He was not taking any medication and did not see a psychiatrist. He stated that he was not currently working because he had problems with authority and feared he would get thrown in jail. The VA examiner concluded that the Veteran was moderately socially and occupationally impaired, and that he was employable from a psychiatric perspective. He assigned a GAF score of 67, reflecting some mild symptoms, but generally functioning pretty well with some meaningful interpersonal relationships. In March 2010, the Veteran filed a claim for an increased disability rating for his PTSD. He was afforded a VA examination in June 2010, at which he reported mildly depressed mood occurring two to four times per week and lasting for a couple of hours. He reported that he had two close friends, and that, in his leisure time, he socialized with them and watched television or listened to the radio. He described his mood as "calm." He reported ongoing sleep impairment, but no hallucinations, inappropriate behavior, obsessive or ritualistic behavior, or panic attacks. Impulse control was described as poor, and the Veteran reported one episode of violence when he got into a fight. The VA examiner assigned a GAF score of 68, again reflecting only mild symptoms, and stated that the Veteran's PTSD resulted in mild occupational and social impairment. Specifically, the examiner stated that the Veteran had PTSD symptoms, such as hypervigilance, that were transient or mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, which is a level of functioning commensurate with a 30 percent disability rating. Further, the examiner noted that there were no significant changes in occupational and social functioning since the last VA examination in 2005. Based on the results of the April 2005 VA examination, VA treatment notes, including a mental health evaluation in January 2007, and the June 2010 VA examination results, the RO proposed to reduce the disability rating for PTSD to 70 percent. This proposal was made in a July 2010 rating decision. In the November 2010 rating decision that is the subject of this appeal, the RO implemented the reduction to 70 percent, effective from February 1, 2011. After a review of the all of the lay and medical evidence in this case, the Board finds that reduction of the disability rating for PTSD from 100 percent to 70 percent was proper, and a restoration of the 100 percent disability rating is not warranted. Namely, a review of all of the evidence reveals that improvement in the disability had occurred at the time of the reduction. Moreover, given the range of time over which improvement was shown - from 2005 to 2010 - the evidence demonstrated that such improvement in the Veteran's PTSD will be maintained under the ordinary conditions of life. The Board also finds that a restoration of the 100 percent disability rating for PTSD is not warranted, and that the weight of the evidence demonstrates that the criteria for a disability rating in excess of 70 percent have not been met for any part of the rating period on appeal. Throughout the rating period on appeal, the Veteran's PTSD has been productive of, at most, significant, but not total, occupational and social impairment due to symptoms no higher than that represented by the 70 percent criteria, including: occasional suicidal ideation, flashbacks, nightmares, occasional visual hallucinations, difficulty concentrating, social isolation, depressed mood, anxiety, mild memory impairment, and sleep impairment. Such degree of impairment of symptoms does not more nearly approximate the criteria for the highest 100 percent evaluation under Diagnostic Code 9411. 38 C.F.R. § 4.130. For example, reviewing the evidence relevant to the rating period on appeal, VA treatment notes and examination reports from 2010 to the present consistently describe the Veteran as being fully alert, pleasant, and cooperative, with normal speech, logical thought processes, no delusions or hallucinations, no panic attacks, intact judgment and insight, intact memory, and no suicidal or homicidal ideations. He has consistently reported intrusive recollections, nightmares, social isolation, poor concentration, irritability, and angry outbursts (see, for example, in VBMS, VA treatment notes from September 12, 2011; VA examination reports dated June 16, 2010; May 25, 2011; and January 11, 2016; and letter from his wife dated August 6, 2010; and in Virtual VA, CAPRI entry 3/14/15, Psychiatry Outpatient Notes dated 1/30/13, p. 13; 5/1/13, p. 10, and 8/7/13, p. 7; and CAPRI entry 11/30/12, Psychology Notes dated 9/12/11, p. 132; 7/2/12, p. 45; 9/13/12, p. 8; Psychiatry Outpatient Notes dated 11/9/11, p. 95; 10/24/12, p. 3; and Psychiatry Long Term Care Consult dated 5/23/12, p. 51). These descriptions of the Veteran's PTSD symptoms weigh against a grant of a disability rating in excess of 70 percent. Indeed, VA treatment and examination reports consistently describe a good relationship between the Veteran and his wife. For instance, the June 2010 VA examination report indicates that the Veteran had been married to his wife for 20 years and that he described the marriage as "pretty good." Moreover, at that examination, he reported that he socialized with two friends on a regular basis, although he denied having friends at later examinations. This weighs against a finding of total social impairment. Further, the evidence demonstrates that the Veteran is the primary care provider for his adult son, who has cerebral palsy and a seizure disorder. Notably, none of the VA examiners have endorsed total occupational and social impairment. As indicated above, the Veteran has been afforded several VA examinations. At the first, in June 2010, the VA examiner opined that the Veteran had PTSD signs and symptoms, such as hypervigilance, that were transient or mild and would decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, consistent with a lower, 30 percent, disability rating. The May 2011 VA examiner described in detail that testing indicated over-reporting of symptoms, and, therefore, the current nature and severity of his mental health condition was unclear, and any attempt to determine his true functional impairment (social or occupational) could only be done through the use of mere speculation. Finally, the January 2016 VA examiner, who also noted over-reporting of symptoms on testing, concluded that he had occupational and social impairment with deficiencies in most areas, consistent with the currently assigned, 70 percent, disability rating. None of the VA examination reports support a grant of a 100 percent disability rating. Namely, while they certainly demonstrate significant occupational and social impairment, they do not show total occupational and social impairment, and none of the symptoms contemplated by a 100 percent disability rating are reported or observed in any of the reports. Further, VA treatment notes demonstrate some improvement in the severity of the Veteran's PTSD symptoms, particularly beginning in 2013, weighing against the assignment of a 100 percent disability rating. For instance, in May 2013, the Veteran reported that he was doing well, that he was sleeping better, that he had less frequent nightmares, and that he was "calm" during the day. He denied any mood or anxiety symptoms that interfered with daily functioning. The VA psychiatrist noted that he was responding well to medication, and that his chronic PTSD symptoms had decreased in intensity and severity (see Virtual VA, CAPRI entry 3/14/15, Psychiatry Outpatient Note dated 5/1/13, p. 10). In August 2013, the psychiatrist again noted that his symptoms had decreased in intensity and severity but had not completely resolved, weighing against the assignment of a higher disability rating (see Virtual VA, CAPRI entry 3/14/15, Psychiatry Outpatient Note dated 8/7/13, p. 7). Finally, the Board has reviewed the GAF scores assigned throughout the rating period on appeal, which range from 50 to 55. At worst, the GAF scores assigned have indicated the presence of severe symptoms, commensurate with the currently assigned 70 percent disability rating. Moreover, the GAF scores of 55 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning. These scores provide highly probative evidence against the assignment of a 100 percent disability rating. In sum, the lay and medical evidence of record relevant to the entire rating period on appeal weighs against a grant of a 100 percent disability rating. Review of the evidence shows that throughout the rating period on appeal, the Veteran's PTSD maintained a level of severity adequately represented by the 70 percent disability rating, at most. Specifically, the evidence did not show that the Veteran's symptoms caused total occupational and social impairment. Although the Veteran has been unemployed for many years, and while the evidence of record certainly demonstrates that the Veteran would have occupational difficulties, no treating or examining physician has stated that the Veteran is totally occupationally impaired due to his PTSD symptoms. Indeed, a December 2010 letter from a private physician states that he is unable to perform any type of work due to his non-service-connected back disorder. With regard to social impairment, the evidence demonstrates that the Veteran is socially isolated, but is able to maintain a good relationship with his wife. Finally, the majority of GAF scores assigned throughout the rating period reflect moderate symptoms, which are not commensurate with a disability rating in excess of 70 percent. Indeed, none of the symptoms listed in the 100 percent disability rating category are demonstrated by the evidence. In this regard, it is important for the Veteran to understand that a 70 percent evaluation indicates a significant impact on the Veteran's occupational and social functioning. Such a disability evaluation by VA recognizes the Veteran's problems with due to his PTSD symptoms, indicating generally a 70 percent reduction in the Veteran's ability to function occupationally and socially, which would cause the Veteran many problems, limiting the ability to function in many situations. The critical question in this case, however, is whether the problems the Veteran has believably cited meet the highest level under the rating criteria at any time during the initial rating period. For reasons cited above, they do not, for any part of the rating period on appeal. Based upon the foregoing, the Board finds that the reduction of the disability rating from 100 to 70 percent was proper, and that the weight of the evidence is against restoration of the 100 percent disability rating. Moreover, the Board finds that the weight of the evidence is against a finding of an increased evaluation in excess of 70 percent for PTSD for any period. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The Board has considered whether an extraschedular evaluation is warranted for the Veteran's PTSD. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's service-connected disabilities are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The Veteran has not expressly raised the matter of entitlement to an extraschedular rating. His contentions have been limited to those discussed above, i.e., that his PTSD is more severe than is reflected by the assigned rating. As was explained in the merits decision above in denying a higher rating, the criteria for a higher schedular rating was considered, but the rating assigned was upheld because the rating criteria are adequate. In view of the circumstances, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service-connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). 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. 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). The central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a "living wage." See Moore v. Derwinski, 1 Vet. App. 356 (1991). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). In this case, the Veteran contends that he is unable to secure employment due to his service-connected disabilities. He retired in 1991 and worked a few other jobs for short periods thereafter. He reported that he quit his last job in 1997 due to a conflict with his supervisor, caused by his irritability and angry outburst attributable to his service-connected PTSD. Records from that employer have been destroyed. Service connection has been established for PTSD, evaluated as 100 percent disabling prior to February 1, 2011, and as 70 percent disabling thereafter; diabetes mellitus, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; bilateral hearing loss, evaluated as noncompensably disabling; and erectile dysfunction, evaluated as noncompensably disabling from December 29, 2011. The Veteran has combined disability ratings of 100 percent prior to February 1, 2011, and 80 percent, effective from February 1, 2011. Therefore, the combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) are met for the entire period on appeal, because the Veteran has both one service-connected disability with an evaluation of at least 60 percent, and two or more disabilities with a combined rating of at least 70 percent with one disability rated at at least 40 percent. Because the Veteran is in receipt of a 100 percent schedular rating for his PTSD prior to February 1, 2011, the Board will only consider eligibility for a TDIU from February 1, 2011. After a review of all the evidence, the Board concludes that the evidence is at least in equipoise as to whether he is unable to secure or follow substantially gainful employment due to his service-connected disabilities. The evidence in favor of the claim for TDIU includes multiple statements from the Veteran and his representative showing their belief that the Veteran is unemployable due to his service-connected disabilities (see, in particular, the January 24, 2013 Statement of Representative in Appeals Case, and letter from the Veteran dated September 19, 2011). In addition, the VA treatment records and examination reports all indicate significant occupational impairment due to the service-connected PTSD, as discussed in detail above. The evidence weighing against the Veteran's claim for TDIU includes opinions from the VA examiners that his service-connected disabilities do not preclude employment. For instance, as discussed in great detail above, none of the VA psychiatric examiners stated that his PTSD would render him unemployable. Moreover, at an October 2011 VA examination, the VA examiner stated that it is at least as likely as not that his bilateral high frequency hearing loss would cause some hearing difficulties that would impact physical and sedentary employment since he reported that he misses many words in conversations; however, the VA examiner stated that the current hearing loss would not cause him to be unemployable. In addition, the examiner stated that the Veteran did not report any difficulties from the tinnitus that would impact physical and sedentary employment. With regard to his diabetes mellitus, at an October 2011 general medical VA examination, the VA examiner stated that his diabetes mellitus would not affect his ability to work, and that he could work like an average person. In addition, there is some indication that non-service-connected disabilities have played a role in the Veteran's unemployability. In a December 2010 letter, a private physician wrote that the Veteran is unable to work due to his non-service-connected back disorder. However, while there is certainly some evidence against the claim, it is clear that the Veteran has significant occupational impairment due to his service-connected PTSD. Indeed, the assigned 70 percent rating includes criteria that contemplates difficulty engaging in work. Therefore, the Board finds that the evidence at least in equipoise as to whether the Veteran is unable to secure gainful employment due to his service-connected disabilities. Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a TDIU are met for the entire period on appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Duties to Notify and 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by way of a July 2010 letter. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording a VA examination. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, VA examination reports, and the Veteran's statements. The Veteran has been afforded an adequate examination on the increased rating issue. VA provided the Veteran with examinations in June 2010, May 2011, and January 2016. The Veteran's history was taken, and complete examinations were conducted. Conclusions reached and diagnoses given were consistent with the examination reports, including notations of the effects of the disability on the Veteran's ability to work. For these reasons, the Board finds that the Veteran has been afforded adequate examinations on the increased rating issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges the representative's January 2013 written statement in which he contends that the May 2011 VA examiner's opinion is not adequate because the examiner was unable to provide an opinion regarding the level of occupational and social impairment caused by the Veteran's PTSD without resort to speculation. However, the examiner provided the reason why he was unable to provide such an opinion (over-reporting of symptoms on testing). Therefore, the May 2011 VA examination is not inadequate. Moreover, the Veteran was subsequently afforded another VA examination in 2016. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The reduction in disability rating from 100 percent to 70 percent for PTSD was proper, and restoration of the 100 percent disability rating is denied. A total rating based on individual unemployability due to service-connected disabilities is granted. REMAND In November 2014 and March 2015 rating decisions, the RO denied reopening of a claim of entitlement to service connection for ischemic heart disease, and entitlement to service connection for chronic fatigue, phlebitis, sinus tachycardia, neurogenic bladder, and sleep apnea. In November 2014 and April 2015, the Veteran filed timely notices of disagreement (NODs) with the November 2014 and March 2015 decisions, respectively. The RO has furnished the Veteran with a statement of the case (SOC) which addresses those issues. In such cases, under judicial precedent, the appellate process was initiated by the NOD, and the appellant is entitled to an SOC on the issue. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, issues numbered one through six, as characterized on the title pages of this decision, are REMANDED for the following action: The RO shall consider issues numbered one through six. If the benefits sought cannot be granted, the RO should issue a statement of the case in accordance with applicable law and regulations. The Veteran and his representative should be informed of the period of time within which he must file a substantive appeal to perfect his appeal to the Board concerning these issues. If a timely substantive appeal is not filed, the claims should not be certified to the Board. If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs