Citation Nr: 1751079 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 12-18 653 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to November 3, 2009, and in excess of 50 percent from January 1, 2010, exclusive of a period during which the Veteran is receiving a temporary total rating. 2. Entitlement to an extension of a temporary total rating beyond December 31, 2009, for convalescence pursuant to 38 C.F.R. § 4.29 for service-connected PTSD. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to June 1969. This appeal to the Board of Veterans' Appeals (Board) arose from April 2009 and March 2010 rating decisions. In April 2009, the RO, inter alia, granted service connection for PTSD and assigned a 30 percent disability rating, effective December 10, 2008. In March 2010, the RO awarded a temporary total disability for the service-connected PTSD from November 3, 2009, to December 31, 2009, based on surgical or other treatment necessitating convalescence. Additionally, the RO granted a 50 percent rating for PTSD effective, January 1, 2010, and denied entitlement to a TDIU. In December 2009 and May 2010, the Veteran filed notice of disagreements (NODs). A statement of the case (SOC) was issued in May 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2012. The Board notes that in a December 2009 statement, the Veteran, through his representative, requested a temporary total disability rating based on hospitalization for his service-connected PTSD. Additionally, in the December 2009 statement, the Veteran's representative stated that "we support the [V]eteran's assertions of increased disability." The Board interprets this statement as a timely NOD as to the April 2009 rating decision, with respect to the initial rating claim for PTSD. See 38 C.F.R. § 20.201. As the Veteran disagreed with the initial rating assigned following the award of service connection for PTSD, the Board characterized this claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). As indicated above, during the pendency of this appeal, in March 2010, the RO granted a 50 percent rating for PTSD effective, January 1, 2010. As a higher rating for the disability is available before and after that date, and a veteran is presumed to seek the maximum available benefit for a disability, the Board has characterized the appeal as now encompassing this matter set forth on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). During the pendency of the appeal for an initial higher rating for PTSD, the Veteran has described that he is no longer employed due to her service-connected PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability). In December 2014, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After accomplishing further action, the AMC continued to deny the claims on appeal (as reflected in the May 2016 supplemental SOC (SSOC)) and returned those matters to the Board for further consideration. This appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matters herein decided have been accomplished. 2. From December 10, 2008, the effective date of the award of service connection for PTSD and exclusive of the period during which the Veteran is receiving a temporary total rating, his PTSD symptoms have included chronic sleep impairment, irritability, social isolation, anxiety, depression, outbursts of anger, and inability to establish and maintain effective relationship. Collectively, these symptoms are of the type and extent, frequency and/or severity (as appropriate), to suggest no more than occupational and social impairment with deficiencies in most areas. 3. The schedular criteria are adequate to rate the Veteran's service-connected PTSD at all pertinent points. 4. After December 31, 2009, the Veteran's service- connected PTSD did not require hospitalization or a period of convalescence. 5. The Veteran's PTSD is now rated as 70 percent disabling; the percentage requirements for a schedular TDIU due to that disability are met. 6. Competent, probative evidence is relatively evenly balanced on the question of whether the Veteran's service-connected PTSD has prevented him from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial rating of 70 percent, but not higher, for PTSD are met from December 10, 2008. 38 U.S.C.A.§§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an initial rating in excess of 70 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.126, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for entitlement to an extension of a temporary total rating beyond December 31, 2009, for convalescence pursuant to 38 C.F.R. § 4.29 for service-connected PTSD are not met. 38 U.S.C.A. 5107 (West 2014); 38 C.F.R. § 4.29 (2017). 4. Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU due to service-connected PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See Pelegrini v. Principi, 18 Vet. App. 112 (2004; Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ (here, the RO, to include the AMC). Id; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A December 2008 pre-rating letter provided pertinent notice to the Veteran in connection with what was then a claim for service connection for PTSD. After the April 2009 award of service connection for PTSD, the Veteran filed a disagreement with the initial rating assigned. No additional notice for the downstream, initial rating issue was required under 38 U.S.C.A. § 5103A. See VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004)). Nonetheless, the SOC and SSOCs reflect that the Veteran has been provided notice of the applicable criteria for evaluating PTSD. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of the Veteran's VA treatment records (as requested by the Board in its December 2014 remand) and a report of VA examinations (as requested by the Board in its December 2014 remand). See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). No other records have been obtained and, significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence necessary for a fair adjudication of the claim that has not been obtained. Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and his representative. The Board finds that no further action on these claims, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Higher Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating assigned following a grant of service connection, evaluation of the medical evidence since the award to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Here, the Veteran's PTSD has been assigned a 30 percent prior to November 3, 2009, and 50 percent since January 1, 2010, exclusive of a period during which the Veteran is receiving a temporary total rating. As the AOJ has already assigned staged ratings for the disability, the Board will consider the propriety of the ratings at each stage, as well as whether further staged rating is warranted. The ratings for the Veteran's psychiatric disability have been assigned under Diagnostic Code 9411. However, psychiatric disabilities other than eating disorders are actually rated pursuant to the criteria of a General Rating Formula. See 38 C.F.R. § 4.130. Under the General Rating Formula, a 30 percent rating is warranted for occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is for assignment when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty establishing effective work and social relationships. A 70 percent rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name. Psychiatric examinations frequently include assignment of a GAF score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126 (a). [Parenthetically, the Board notes that the, revised DSM-5, which among other things, eliminates GAF scores, applies to cases certified to the Board after August 4, 2014. See 79 Fed. Reg. 45,093 (Aug. 4, 2014))]. In this case, the Veteran's claim was certified to the Board in August 2012; thus, DSM-IV is pertinent to his initial rating claim. Turning to the pertinent evidence of record, in a March 2009 VA treatment record, the Veteran reported chronic sleep impairment, irritability, social isolation, difficulty concentrating, and anger. The VA treatment provider found that the Veteran was appropriately dressed and groomed. His speech was relevant coherent and goal directed. His insight and judgment were intact. The VA treatment provider diagnosed PTSD and alcohol dependence and assigned a GAF score of 60. In April 2009, the Veteran was afforded an examination. He reported chronic sleep impairment with nightmares, relationship problems, anger, depression, anxiety, irritability, difficulty concentrating, decreased energy, and social isolation. He stated that he had an episode of violence. He denied suicidal ideation and hallucinations. He stated that he drinks alcohol; he indicated that he drinks 3 cases of beer a week. He has been divorced twice; he is currently married to third spouse. He has been married for five years. He has two children from his first marriage. He stated that his children do not want a relationship with him. He stated that he does not have a close relationship with anyone. However, he stated that he gets along with others and has respect for others. He stated that although his marriage has ups and downs, he and his wife are committed to their marriage. He lives with his spouse stepdaughter, and mother-in-law. As to leisure activities, he stated that he golfs, goes to the bars, plays computer games, yard work, chores around the home, and fishes. He has a high school diploma and 2 years of college. He reported an employment history of construction worker for four to five years and then he worked at the Post Office for 27 years until his retirement in 2005. Thereafter, he owned a dollar store in November 2008 and that he closed the store 8 months later because the roof caved in. He indicated that he is currently unemployed. He stated that since that time, he has lost motivation to work. He descried that a black cloud hangs over him. The April 2009 VA examiner found that the Veteran was oriented to time and place. He was alert and attentive. He was appropriately dressed and casually dressed. His speech was unremarkable. His affect was constricted and his mood was depressed. His thought process, content, and judgment were normal. He had mildly impaired recent and immediate memory. The examiner explained that the Veteran had a delayed memory and is forgetful. His insight was limited. The examiner indicated that the Veteran did not have inappropriate or obsessive/ ritualistic behavior. His impulse was fair. The examiner diagnosed PTSD and alcohol abuse. The examiner characterized the Veteran's symptoms as chronic and that it caused significant distress or impairment in social, occupational or other important areas of functioning. The examiner also indicated that his PTSD symptoms are transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner assigned a GAF score of 55. In February 2010, the Veteran was afforded an examination. He reported that same history and symptoms as given in the April 2009 examination. He denied suicidal ideation and hallucinations. He indicated that his wife does not understand his attitude. He stated that he has a good relationship with his stepdaughter. He stated that he has a few friends that he visits on occasions. He stated that he does not trust others. As to leisure activities, he plays gold when he is not having flare-ups of his arthritis. The Veteran indicated that he is having financial difficulties. He explained that he has been in the process of closing his dollar store. He stated that his arthritis prevents him from obtaining employment. The VA examiner found that the Veteran's affect was constricted, his mood was fair. He was oriented to person, time, and place. His thought process and thought content were unremarkable. His memory was normal. The examiner indicated that the Veteran did not have inappropriate or obsessive/ ritualistic behavior. The examiner diagnosed PTSD and alcohol dependence. The examiner characterized the Veteran's PTSD symptoms as chronic. The examiner assigned a GAF score of 55. Lay statements dated in April 2010, reported the Veteran's PTSD symptoms to include depression, readjustment problems, marriage problems, and substance abuse. In the Veteran's May 2010 NOD, he asserted that he is unable to work, to include, as due to his PTSD. In September 2010, the Veteran was afforded an examination. He reported symptoms of moderate depression, panic attacks, depressed mood, forgetfulness, chronic sleep impairment, social isolation, irritability, difficulty concentrating, and anger. He reported that he recently got into a fight. He denied ideation, hallucinations, and delusions. He stated that he continues to be married to his wife of six years. He described his relationship with his family members as "so-so." He indicated that his family members irritate him. He stated that he does not have friends that he socializes with. He enjoys golfing and fishing. He attends PTSD group counseling. The Veteran reported the same employment history as given during his previous examinations. In addition, he stated that he had to file for bankruptcy due to a business venture failure. The September 2010 VA examiner found that the Veteran was neatly groomed and casually dressed. His speech was clear and coherent. The examiner found that the Veteran had difficulty with attention and concentration during the examination. The examiner explained that the Veteran appeared easily distracted. However, his attention was sufficient for interview questions. He was oriented to person, place, and time. His thought process was evasive. The examiner indicated that the Veteran's executive functioning abilities were moderately to severely impaired. His thought process was unremarkable. He has mild impaired remote memory, namely he has difficulty remembering dates and recent and remote events. The examiner also indicated that the Veteran has significantly impaired ability to acquire and retain information, but his recognition processes appear intact. He also demonstrated significant impairment in processing speed and problem solving strategies. The examiner stated that it is highly unlikely that the Veteran would have been able to function adequately across his lifespan either occupationally or socially given the level of impairment demonstrated on current test results. Current results are likely more reflective of poor effort combined with internal factors stemming from anxiety, chronic alcohol use, and marijuana use." The examiner found that the Veteran had moderate obsessive/ritualistic behavior. The examiner indicated that the Veteran has panic attacks in enclosed places such as elevators. He has good impulse control. He is able to maintain personal hygiene. The examiner found that the Veteran does not have a problem with activities of daily living. The examiner diagnosed PTSD, alcohol dependence, and marijuana abuse. The examiner characterized the Veteran's symptoms as moderate. The examiner also indicated that his PTSD symptoms are transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner assigned a GAF score of 62. The examiner concluded that the Veteran is not unemployable due to PTSD and deferred the matter to a medical examiner to provide assessment of unemployability due to other medical causes. VA treatment records dated in April 2010, June 2010, September 2010, and August 2010 reflect that the Veteran continued to participate in mental health group counseling. VA treatment records dated from September 2010 to April 2016 include the Veteran's reported symptoms of hypervigilance, irritability, social avoidance, depression, difficulty concentrating, alcohol abuse, and sleep impairment. See, e.g., VA treatment records dated in February 2011, April 2011, October 2013, and May 2015. Specifically, in a July 2011 VA treatment report, the Veteran stated that he remains active in the home and plays golf routinely, which he enjoys. His relationship with wife is good. In a June 2012 VA treatment record, the Veteran reported that he got into a physical altercation with his brother. He stated that he is not drinking alcohol every day. In December 2016, the Veteran was afforded an examination. He reported irritability, anger outburst, social isolation, depressed mood, chronic sleep impairment, anxiety, disturbances of motivation and mood, and diminished interest or participation in significant activates. He denied suicidal ideation, hallucinations, and delusions. He stated that he continues to be married to his wife for 12 years. He stated that he has limited interaction with his wife. He stated that he has two stepsons and a step-daughter. He recently met with his daughter, who he had not seen since she was a child; he stated that his visit with his daughter went well. He stated that he visits his adult children and grandchildren regularly; but, he "can't handle it", as he feels nervous. He indicated that he has siblings; however, he does not have a relationship with them. He stated that he has no close friends. As to leisure activities, he stated that he does household chores, goes to the VFW and play cars and have a few drinks. He stated that he is unemployed. The December 2016 VA examiner found that the Veteran was adequately groomed and casually dressed. His thought process was linear and goal directed. His judgement and insight were fair. His memory, attention, and concentration were intact. The examiner stated that there was no evidence to suggest difficulty with attention and concentration during the evaluation, his attention was sufficient for interview and question responding, and he was able to maintain focus and resist distractions. He was oriented to person, place, and time. The examiner opined that the Veteran's PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner characterized the Veteran's symptoms as mild to moderate. As to the Veteran's unemployability, the December 2016 VA examiner opined that the Veteran is mentally competent to work. The VA examiner reasoned that that the Veteran is able to follow instructions, retain information, and concentrate. However, the examiner indicated that the Veteran's ability to maintain concentration and appropriately respond to others, to include coworkers and supervisors are moderately impaired. The examiner also found that the Veteran's ability to adapt to changes in a work setting is moderately impaired. The evidence shows that in addition to the service-connected PTSD, the Veteran has been diagnosed with alcohol dependence and marijuana abuse. The VA examiners or VA treatment providers have not differentiated between symptomatology associated with the Veteran's service-connected PTSD and the nonservice-connected alcohol dependence, and marijuana abuse. To this end, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2014); Mittleider v. West, 11 Vet App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so). Accordingly, the Board will attribute all of the Veteran's psychiatric symptoms to his PTSD, for the purposes of assessing the severity of that disability. Based on the consideration of the above-cited evidence, including the VA examination reports, VA treatment records, and the lay statements of record, the Board finds that the lay and medical evidence indicates that a rating of 70 percent, but not higher, for the Veteran's psychiatric disability is warranted from the date of the claim for service connection, exclusive the period of a period during which the Veteran is receiving a temporary total rating. The above-cited evidence indicates that since the date of the Veteran's claim for service connection his PTSD manifested by symptoms including chronic sleep impairment with nightmares, hypervigilance, impaired memory, irritability, anger outburst, social isolation, difficulty concentrating, relationship problems, and anger. Furthermore, the evidence demonstrates that the Veteran has been unable to establish and maintain effective relationships. For example, during the April 2009 examination, the Veteran reported that he does have a relationship with his children or a close relationship with anyone. He has stated that he has sibling; however, he does not have a relationship with them. See VA examination report dated December 2016. During the September 2010 VA examination, the Veteran described his relationship with his family members as "so-so," he elaborated and stated that his family irritates him. During the December 2016 examination, the Veteran stated that he has limited interaction with his wife. He stated that he had no friends that he socializes with. During the VA examinations and in a June 2012 VA treatment record, the Veteran reported symptoms of irritability with periods of violence. He also has indicated that he has lost motivation to work. The September 2010 VA examiner found that the Veteran had deficiencies in problem solving, retaining information, and executive functioning. Moreover, some of the VA examiners characterized the Veteran's PTSD symptoms as chronic. Collectively, these symptoms are of the type and extent, frequency or severity (as appropriate), to suggest occupational and social impairment with deficiencies in most area-the level of impairment contemplated in the assigned 70 percent rating. The Board recognizes that some of the VA examiners found that the Veteran PTSD symptoms causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation, which is indicative of a 30 percent rating and characterized the Veteran's symptoms as mild to moderate. See VA examination report dated December 2016. However, the characterization of the level of disability is an adjudicative rather than a medical determination: "The medical examiner provides a disability evaluation and the rating specialist interprets medical reports in order to match the rating with the disability." Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev'd on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Furthermore, the Veteran has been assigned GAF scores ranging from 55 to 62. GAF scores ranging from 51 to 60 reflect 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 coworkers). GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well and has some meaningful interpersonal relationships. The Board notes that while the Veteran had a GAF score of 60 in March 2009, indicating moderate symptoms, his later scores of 55 reflect more serious symptoms of PTSD, to include difficulty in social and occupational settings and suicidal ideation, and appear more consistent with a rating of 70 percent. Nevertheless, as stated above, GAF scores are not dispositive, and the Board reiterates that it is the symptoms shown, and not an assigned GAF score or an examiner's assessment of the severity of a disability, which provides the basis for the assigned rating. See 38 C.F.R. § 4.126 (a). Having considered these factors together and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's PTSD symptoms are of such frequency, duration, and severity so as to result in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, warranting a 70 percent rating throughout the appeal period. See Vazquez-Claudio, 713 F.3d at 117. The Board finds that the criteria for a higher rating, 100 percent, are not met. To this end, the Veteran consistently denied delusions and hallucinations. See, e.g., VA examination reports dated April 2009 and December 2016. The VA examiners and VA treatment providers consistently found that the Veteran was adequately groomed and casually dressed. See, e.g., VA treatment record dated March 2009 and VA examination reports dated in April 2009 and December 2016. Thus, there is no indication that the Veteran was unable to maintain minimal personal hygiene or inability to perform activities of daily living. There was no evidence of grossly inappropriate behavior. Although the Veteran reported irritability with periods of violence, such a symptom was not the frequency or severity of persistent danger of hurting self or others as contemplated in the 100 percent rating criteria. Furthermore, there was no evidence of gross impairment in throughout processes or communication. In fact, VA examiners and VA treatment providers found that the Veteran maintained fair insight, judgment, and thought process. See, e.g., VA examination report dated April 2009. He was oriented to time and place; and he did not exhibit memory loss of close relatives, his own occupation, or his own name. For these reasons, the Board cannot find that the Veteran has experienced symptoms of the type and extent, frequency or severity (as appropriate) to warrant the next, higher 100 percent rating. In reaching the above conclusions, the Board is mindful that the symptoms listed in the rating schedule are essentially examples of the type and degree of symptoms indicative of the level of impairment required for each such rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher rating. See Vazquez-Claudio and Mauerhan, supra. As explained above, the Board has found that that the evidence of record shows that the Veteran has manifested sufficient symptoms of the type and extent, frequency, or severity (as appropriate), to result in the occupational and social impairment with deficiencies in most areas required for the next higher of 70 percent. However, he did not show symptoms of the type and extent, frequency, or severity (as appropriate), to result in total occupational and social impairment required for the next higher of 100 percent rating. Moreover, the Veteran had some social interactions and relationships, reflecting that his overall level of impairment did not more nearly approximate total occupational and social impairment. The above determinations are based on consideration of pertinent provisions of VA's rating schedule. Additionally, the Board finds that, exclusive the period in which the Veteran was receiving a temporary total rating for his PTSD, at no point since the service connection claim was filed has the Veteran's psychiatric disability been shown to present so exceptional or so unusual a picture as to render the applicable criteria inadequate, and to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321 (b)(1). The threshold factor for extra-schedular consideration is a finding on the part of the AOJ or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the AOJ 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" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321 (b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. 111. In this case, the Board finds that schedular criteria are adequate to rate the Veteran's psychiatric disability at all pertinent points. As discussed above, the Veteran's predominant psychiatric symptoms impact his overall social and occupational functioning, and a comparison between the Veteran's symptoms and the criteria of the rating schedule indicates that the rating criteria reasonably describe his level of impairment. In this regard, all of the Veteran's psychiatric symptomatology is contemplated by the rating criteria, to include those symptoms, such as nightmares, which are not specifically enumerated. See Mauerhan, supra. Notably, there is no evidence or allegation that the schedular criteria are inadequate to rate the disability. In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities." In this case, entitlement to a TDIU has been granted. The Federal Circuit in Johnson indicated that the TDIU provision only accounts for instances in which a veteran's combined disabilities establish total unemployability, i.e., a disability rating of 100 percent. Id. at 1366. On the other hand, 38 C.F.R. § 3.321(b)(1) performs a "gap-filling" function. Id. It accounts for situations in which a veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of a veteran's disabilities are nonetheless inadequately represented. Id. As the Veteran has been granted TDIU, he is deemed to have total unemployability and there is no "gap" to fill by § 3.321(b). Further discussion of an extraschedular rating based on the collective impact of multiple disabilities is therefore not warranted in this case. As the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321 (b)(1) is not met, referral of the claim for extra-schedular consideration is not required. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As such, an initial disability rating of 70 percent, but not higher, for the entirety of the appeal is warranted. 38 C.F.R. § 4.130, DC 9411. III. Temporary Total Disability Rating Here, the Veteran asserts entitlement to an extension of a temporary total rating beyond December 31, 2009, for convalescence for his service-connected PTSD. See Veteran's NOD dated in May 2010. Under 38 C.F.R. § 4.29 , for ratings for service-connected disabilities requiring hospital treatment or observation, a total disability rating will be assigned, without regard to other provisions of the rating schedule, when it is established that a service-connected disability has required hospital treatment in a Department of Veterans Affairs or an approved hospital for a period in excess of 21 days or hospital observation at Department of Veterans Affairs expense for a service-connected disability for a period in excess of 21 days. (a) Subject to the provisions of paragraphs (d), (e), and (f) of this section this increased rating will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge (regular discharge or release to non-bed care) or effective the last day of the month of termination of treatment or observation for the service-connected disability. A temporary release, which is approved by an attending Department of Veterans Affairs physician as part of the treatment plan, will not be considered an absence. (1) An authorized absence in excess of 4 days, which begins during the first 21 days of hospitalization, will be regarded as the equivalent of hospital discharge effective the first day of such authorized absence. An authorized absence of 4 days or less, which results in a total of more than 8 days of authorized absence during the first 21 days of hospitalization, will be regarded as the equivalent of hospital discharge effective the ninth day of authorized absence. (2) Following a period of hospitalization in excess of 21 days, an authorized absence in excess of 14 days or a third consecutive authorized absence of 14 days will be regarded as the equivalent of hospital discharge and will interrupt hospitalization effective on the last day of the month in which either the authorized absence in excess of 14 days or the third 14 day period begins, except where there is a finding that convalescence is required as provided by paragraph (e) or (f) of this section. The termination of these total ratings will not be subject to § 3.105(e) of this chapter. (b) Notwithstanding that hospital admission was for disability not connected with service, if during such hospitalization, hospital treatment for a service-connected disability is instituted and continued for a period in excess of 21 days, the increase to a total rating will be granted from the first day of such treatment. If service connection for the disability under treatment is granted after hospital admission, the rating will be from the first day of hospitalization if otherwise in order. (c) The assignment of a total disability rating on the basis of hospital treatment or observation will not preclude the assignment of a total disability rating otherwise in order under other provisions of the rating schedule, and consideration will be given to the propriety of such a rating in all instances and to the propriety of its continuance after discharge. Particular attention, with a view to proper rating under the rating schedule, is to be given to the claims of Veterans discharged from hospital, regardless of length of hospitalization, with indications on the final summary of expected confinement to bed or house, or to inability to work with requirement of frequent care of physician or nurse at home. (d) On these total ratings Department of Veterans Affairs regulations governing effective dates for increased benefits will control. (e) The total hospital rating if convalescence is required may be continued for periods of 1, 2, or 3 months in addition to the period provided in paragraph (a) of this section. (f) Extension of periods of 1, 2 or 3 months beyond the initial 3 months may be made upon approval of the Veterans Service Center Manager. The Veteran has been assigned a temporary total rating (100 percent) from November 3, 2009, to December 31, 2009, for hospitalization in excess of 21 days due to service-connected PTSD. By way of history, VA treatment records reflect that the Veteran was admitted to an inpatient Stress Treatment Program on November 3, 2009, and was discharged December 11, 2009. Based on the foregoing, and pursuant to the provisions of 38 C.F.R. § 4.29, the RO assigned a 100 percent rating for hospitalization in excess of 21 days, from November 3, 2009, (date of initial hospitalization) to December 31, 2009, (the last day of the month of hospital discharge). See 38 C.F.R. § 4.29(a). Pursuant to 38 C.F.R. § 4.29(a), an increased rating will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge (regular discharge or release to non-bed care) or effective the last day of the month of termination of treatment or observation for the service-connected disability. Here, the evidence clearly shows that the Veteran was hospitalized and treated consecutively from November 3, 2009, to December 11, 2009, with no discharge, absence or break in treatment during that time period. During this time period, a December 2009 VA discharge summary report shows that the Veteran was admitted to the inpatient stress treatment program from November 03, 2009, to December 11, 2009. The discharge summary report reflects that admission GAF score was 50 and discharge GAF score was 55. VA treatment records during his admission include the Veteran reports of marriage problems, and sleep impairment. He consistently denied suicidal ideation and hallucinations. He participated in PTSD group therapy. Diagnoses included PTSD and alcohol dependence, in remission. VA treatment providers found that his insight, judgement, thought process, and thought content were within normal limits. See, e.g., VA treatment records dated in December 2009. In addition, the he discharge summary report reflects the Veteran would continue various group therapies, VA treatment at a clinic, and engage in trauma focused treatment. Furthermore, the evidence of record includes a Certificate of Completion Stress Treatment Program To this end, there is no lay or medical evidence that convalescence was required or additional hospital admission his PTSD following his discharge on December 11, 2009. In summary, the evidence does not show that the Veteran required convalescence after his hospitalization. 38 C.F.R. § 4.29 (e). The December 2009 VA discharge summary, while noting that he would be followed by the VA clinic, it did not indicate that the Veteran required any type of convalescence. The termination date properly is the last day of the month of the hospital discharge. See 38 C.F.R. § 4.29 (a). Thus, a temporary total rating beyond December 31, 2009, is not warranted. IV. TDIU The Veteran contends that his service-connected PTSD prevents him from securing or following substantially gainful employment. Where the schedular rating is less than total, total disability ratings for compensation based upon individual unemployability may be assigned when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, based on the Board's decision above, the Veteran now meets the minimum percentage requirements, set forth in 38 C.F.R. § 4.16 (a), for a schedular TDIU due to PTSD (now rated as 70 percent disabling). Accordingly, as of December 10, 2008, the Veteran has had at least one disability ratable at 60 percent, and the Veteran is eligible for a schedular TDIU rating under 38 C.F.R. § 4.16 (a). As such, the remaining question, then, is whether the Veteran's service-connected PTSD has rendered him unable to obtain or retain substantially gainful employment. The central inquiry is "whether the Veteran's service-connected disability(ies) is/are alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant 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. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R.§ 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). At the outset, the Board acknowledges that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16 (a). See also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). However, as medical records addressing the functional effects of the Veteran's disability(ies) on his ability to perform the mental and/or physical acts required substantially gainful employment are relevant to the unemployability determination (see 38 C.F.R. § 4.10 (2014) and Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)), the Board has considered medical evidence along with lay evidence in evaluating the TDIU claim. Considering the pertinent evidence in light of the applicable legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a schedular TDIU is warranted. As stated above, the evidence shows that the Veteran has a high school diploma and 2 years of college. He was previously employed as a construction worker for 5 years. Thereafter, he worked at the Post Office for 27 years until his retirement in 2005. He stated that sometime in 2008, he owned a dollar store and had to close the store because the roof caved in. Since that time, he has been unemployed. The Veteran's PTSD manifested by symptoms including chronic sleep impairment with nightmares, hypervigilance, irritability, impaired memory, anger outburst, social isolation, difficulty concentrating, relationship problems, and anger. Moreover, during VA examination, the Veteran has reported decreased energy and stated that he has lost motivation to work due to his PTSD. Although the September 2010 and December 2016 VA examiners found that the Veteran was not unemployable due to his PTSD, the evidence reflects otherwise. For instance, the September 2010 VA examiner found that the Veteran has difficulty concentrating, unable to retain information, and has difficulty getting alone with others. Moreover, the September 2010 examiner stated that the Veteran's executive functioning abilities were moderately to severely impaired. Importantly, the September 2010 noted that the Veteran had difficulty with attention and concentration during the examination. The examiner explained that the Veteran appeared easily distracted. He also demonstrated significant impairment in processing speed and problem solving strategies. Crucially, the September 2010 examiner stated it is highly unlikely that the Veteran would have been able to function adequately across his lifespan either occupationally or socially given the level of impairment demonstrated on current test results. Moreover, the December 2016 VA examiner Veteran's ability to maintain concentration and appropriately respond to others, to include coworkers and supervisors are moderately impaired. The examiner also found that the Veteran's ability to adapt to changes in a work setting is moderately impaired. The above-cited evidence reflects that the Veteran has not been employed full-time since at least 2008, and that his service-connected PTSD has interfered with his ability to obtain and retain gainful employment. The Board notes that the Veteran's past employment as construction worker and a postal employee required a combination of mental and physical functionality. The Veteran's prior employment required interaction with others, concentration, memory, and some physical exertion. Furthermore, the Veteran's educational and occupational experience is limited. As such the evidence demonstrates that the Veteran's service-connected PTSD severely impairs his ability to perform work consistent with his education and occupational experience. Thus, given the totality of the evidence, the Board finds that the question of whether the Veteran's functional limitations from his service-connected PTSD preclude gainful employment consistent with his education and occupational work experience is, at least, in relative equipoise. Where, as here, after consideration of all evidence and material of record in a case for VA benefits, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such issue shall be given to the claimant. See 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107 (b); Gilbert, 1 Vet. App. at 53-56. Given the evidence noted above, and resolving reasonable doubt in the Veteran's favor, entitlement to a TDIU is warranted. ORDER Entitlement to an initial rating of 70 percent rating for PTSD from December 10, 2008, exclusive of the period during which the Veteran was in receipt of a temporary total rating, is granted, subject to the legal authority governing the payment of compensation. An initial rating in excess of 70 percent for PTSD is denied. Entitlement to an extension of a temporary total rating beyond December 31, 2009, for convalescence pursuant to 38 C.F.R. § 4.29 for service-connected PTSD is denied. A TDIU is granted, subject to the legal authority governing the payment of compensation. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs