Citation Nr: 1751972 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-22 823A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. D'Allaird, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to November 1971. These matters are before the Board of Veterans' Appeals (the Board) on appeal from an April 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburgh, Florida. This appeal is now in the jurisdiction of the Roanoke, Virginia RO. The Board notes in June 2010, the Veteran submitted a Form 9 (substantive appeal) that requested a Board hearing. A hearing was scheduled for June 2016, and the Veteran failed to appear. Thus, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2017). In August 2016 the Board remanded this claim for additional development. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's PTSD is shown to have caused occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. The Veteran was not unable to obtain or retain substantially gainful employment during the period on appeal as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (Code) 9411 (2017). 2. The criteria for entitlement to an award of a total disability rating based upon individual unemployability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). VA's duty to notify was satisfied by December 2008 correspondence. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Regarding the duty to assist, the Veteran's service treatment records (STRs) and relevant post-service treatment records have been secured. The agency of original jurisdiction (AOJ) arranged for VA examinations which were held in December 2008, July 2011, and March 2017. The Board finds that the clinical findings and informed discussion of the history and cause of the Veteran's PTSD in the examinations are sufficient for rating purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-300 (2008). As stated above, the Board previously remanded the case to schedule the Veteran for a new VA examination because the Veteran's last examination had been in 2011 and he stated his condition had worsened. The Agency of Original Jurisdiction (AOJ) satisfied this directive and a new VA examination was obtained in March 2017. The AOJ has substantially complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA's duty to assist is met. II. Legal Criteria As an initial matter, the Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. Increased Rating Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where an increase in the level of a service-connected disability is at issue, as in the present case, the primary concern is the current level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran's PTSD has been evaluated under 38 C.F.R. § 4.130, Code 9411. Under these criteria, a 70 percent rating is warranted where the psychiatric condition produces 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 where the psychiatric condition results in 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. Evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The GAF is a scale which reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). GAF score and interpretations of the score are important considerations in the rating of a psychiatric disability, though the GAF score assigned to a veteran is not dispositive of the severity of the veteran's mental health disability. See Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). The GAF score must be considered in light of the actual symptoms manifested by the veteran's disorder, which must provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The Board notes that the GAF scale was removed from the more recent DSM-5 for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-5, Introduction, The Multiaxial System (2013). VA implemented DSM-5, effective August 4, 2014, and determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45, 093, 45, 094 (Aug. 4, 2014). Because the Veteran's increased rating claim was originally certified to the Board in February 2016, the DSM-5 is applicable to this case. TDIU A veteran is entitled to TDIU benefits when, due to service-connected disabilities, they are unable to secure or follow a substantially gainful occupation, and have a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable solely by reason of service-connected disability. See 38 C.F.R. § 4.16(b). The record must show some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose, 4 Vet. App. at 361. III. Facts In September 2004 the Veteran submitted a VA Form 21-8940 Veteran Application for Increased Compensation based on Unemployability. In it, the Veteran stated he had last worked in July 1997. VA treatment records dated in February 2008 reflect the Veteran reported trouble falling asleep several days, feeling tired and having little energy several days, having trouble concentrating several days, and having thoughts that he would be better off dead several days. He reported that these problems made it somewhat difficult to do his work, take care of things at home, or get along with people. The Veteran screened positive for mild depression. In June 2008 the Veteran stated he could not work because of his nerves. He stated that he almost never slept and that when he did sleep, his nightmares about the war always came back. He also stated that he angered easily, drank alcohol on a daily basis and "wonder[ed] if suicide [might] be [his] only answer to [his] problem." The Veteran submitted an additional statement in June 2008 in which he stated that his condition had caused him to attempt suicide at least one time, have a constant drinking problem and relive the war. Also in June 2008 he stated that he could not sleep without the aid of sleeping pills and was moody and mad most of the time. In September 2008 the Veteran submitted a Form 21-8940 and stated that he last worked full time in 2004 as a clerk at a convenience store. In December 2008, the Veteran submitted a statement reporting that he had dreams of killing the enemy in combat, could not sleep at all times, had mood swings and had a very short temper at times. Also in December 2008, the Veteran was afforded a VA examination. The Veteran reported being unable to sleep and having nightmares. He reported his drinking had increased "dramatically" from daily to one to two times per day. He also reported irritability. He further reported that he had dental problems and wanted VA to manage his dental work but he would need 60 percent for the VA to help him and he could afford this on his own. It was also noted he had a good relationship with his 20 year-old daughter. He reported social interaction with one or more friends. He also reported a physical altercation within the previous year during which he almost stabbed his friend. The Veteran stated that he was unemployed and attributed this to his mental disorder. The examiner opined that the Veteran's drinking and PTSD symptoms more likely than not resulted in his irritability level affecting his work. The Veteran stated he was a mail carrier but they would not promote him and "they got on my nerves." He stated he retired in 1997. He also reported that he worked at a convenience store for some period of time and had had several jobs since 1997 for short periods of time. The Veteran stated that he felt he could work again "in the right conditions, where there would be no stress, such as a clerk shuffling papers." The examiner noted that the Veteran isolated himself. No impairment in thought process or communication, delusions, hallucinations was noted and the Veteran's behavior was noted as appropriate. The examination report also noted that he did not have current suicidal thoughts, ideation, plans or intent but he did report passing thoughts. It was further noted that he was able to maintain personal hygiene and basic activities of daily living; he was oriented to time, person and place, and he did not have memory loss or impairment. He did report sleep impairment but also stated that he does not take his sleep medication regularly which he reported allowed him to sleep when taken. Finally, he reported feeling that everything was against him and he could not get up and get a job. The examiner noted the severity of the Veteran's psychiatric symptoms to be medium and chronic and continuous. The examination report stated that the disturbance and symptomatology caused clinically significant distress or impairment in social, occupational or other important areas of functioning. The report further noted that the Veteran's PTSD affected his employment, activities of daily living, routine responsibilities, family role, physical health, relationships, leisure activities and quality of life to a moderate degree. The examiner opined the Veteran's employability was poor but he was not unemployable. The examiner noted his employability was "questionable" given his level of alcohol abuse. His Global Assessment Functioning (GAF) score was 45. The examiner opined that the Veteran's alcohol dependence problem "more likely than not interact[ed] with his PTSD symptoms such as irritability and sleep difficulties." The examiner stated "he [had] symptoms of depression which [were] difficult to separate from his alcohol abuse and overlap[ped] with PTSD symptomatology." The examiner further opined that the Veteran did "not appear to want any help with managing his alcohol dependence, and it [was] not likely that he [would] find any relief from other issues until this [was] resolved." The Veteran submitted a VA Form 9 in June 2010 in which he stated "I don't get any sleep and my nightmares keep me on pins and needles. I drink daily and I sometimes feel that suicide may be my only relief from this condition to find peace at last." VA treatment records dated in June 2010 reflect the Veteran was rushed to the mental health clinic with a question of suicidal ideation. He stated that he was very upset over not being able to increase his service-connected benefits so that he could get much needed dental work. The Veteran reported trouble sleeping, frequent nightmares related to Vietnam combat and occasional intrusive recollections of combat. In additional VA treatment records dated in June 2010 the Veteran reported having suicidal thoughts. He also reported trouble sleeping, feeling depressed, having little interest or pleasure in doing things, feeling bad about himself, and that these problems made it somewhat difficult from him to do work, take care of things at home, or get along with other people. In July 2010, VA treatment records reflect the Veteran reported significant improvement in his mood and sleep. He felt that the medication Mirtazapine was helping. He reported feelings of depression at times and occasional nightmares and intrusive recollections of combat, and hypervigilance. The records note the Veteran was of normal mental status and had no suicidal ideation or affective disturbance. In VA treatment records dated in August 2010, the Veteran reported feeling a little better than the last visit, and that he had good days and bad days. He reported that on his bad days he was isolative and somewhat depressed. He reported still experiencing nightmares and that he took his medication inconsistently. The records noted normal mental status and no suicidal ideation. Also in August 2010, the Veteran reported that he usually kept his temper under control but there had been one recent occurrence in which he was arguing with another person and became so angry that he grabbed the other man and had to be restrained by his friends. He also reported drinking up to a six pack of beer per day but had cut back since his initial visit. In October 2010, VA treatment records note the Veteran had a part time job in a convenience store and reported doing better overall. He played checkers in a club in his spare time and had been "getting out more." He once again reported good and bad days, but sleeping better. The records noted normal mental status during the visit and no suicidal ideation. In a November 2010 statement, the Veteran stated that had had mood swings and thoughts of suicide. The Veteran was afforded another VA examination in July 2011. The examiner noted that the Veteran had been receiving psychiatric treatment from June to October 2010 and had consistently reported an improvement in his PTSD and depressive symptoms, along with increased socialization during the time he was receiving treatment. The Veteran reported that he was still experiencing nightmares and had terrible dreams about the war. He stated he was trying to drink less and stay active, noting that he often read. He also stated "I know it's impossible for me to work anywhere because my nerves are so bad." He also reported no changes in the frequency, duration or severity of his psychiatric symptoms since the last visit. The Veteran reported having a supportive and good relationship with his 23 year-old daughter. He also reported regular interactions with family, stating "I socialize with family and friends." He reported regular phone contact with a brother and sister with infrequent visits. He also reported getting together with friends every nine to ten days. He further stated that he went to baseball games, watched television, listened to the radio and music, and liked to play checkers. The Veteran reported consuming a six-pack of beer three times per week. He also stated that he got into verbal confrontations with friends and strangers on the street. He reported that he was trying to reduce these confrontations to once a month and that it used to occur every two weeks. The examiner noted that the Veteran isolated himself but was capable of the basic activities of everyday living and maintaining personal hygiene. The examiner also noted the Veteran was appropriately dressed and well-groomed, and his thought process was organized and goal oriented. The Veteran reported seeing a shadow once every two to three days at night when trying to sleep, beginning a few months prior. The examiner noted that the Veteran demonstrated capacity for reality-testing. His behavior in session was noted as appropriate. The examination report also noted that the Veteran reported chronic, fleeting suicidal ideation without intent every two to three days for the past eight to ten years. The report noted the Veteran reported short term memory loss and was incorrect as to the date by three days and the day of the week by one day. The Veteran also reported bouts of depressed mood, "an hour every week or an hour a day." He also stated he got an hour of sleep per night and slept during the day. The examiner noted the severity of the Veteran's psychiatric symptoms to be moderate, chronic and continuous. It was further noted that the Veteran reported a diminished interest in going out and dealing with people and large crowds, had feelings of detachment or estrangement from others and had a restricted range of affect to a certain degree. The examiner indicated that the Veteran's PTSD symptoms had a moderate effect on employment, family role, physical health, relationships and quality of life. His symptoms had a mild to moderate effect on routine responsibilities and leisure activities. The examiner stated that "it [was] not clear to what extent his alcohol use contribute[d] to his psychiatric symptoms and functional impairment." The examiner further stated that the Veteran's ongoing alcohol dependence likely exacerbated his PTSD and depression and the extent to which disorders other than PTSD were independently responsible for his current psychosocial and quality of life impairments was "strong." The examiner finally noted the Veteran had not followed up with his mental health treatment. In VA treatment records dated in June 2011 the Veteran reported still having nightmares and being unable to sleep without sleeping pills. In an April 2013 statement the Veteran stated he was still having nightmares and could not sleep due to thoughts of death. The Veteran submitted another statement in July 2013 in which he stated he was having nightmares and woke up sweating, and was still drinking a lot. He further stated that he could not find a job and sometimes did not get sleep for weeks on end. In VA treatment records dated in October 2013, the Veteran reported poor sleep, nightmares, intrusive thoughts, avoidant behaviors, constant anxiety, hyperarousal, hypervigilance, and difficulty with intimacy. The Veteran reported having few friends and socializing mostly with his sister, daughter and brother. It was also noted he had friends whom he interacted with regularly. He denied symptoms of depression and reported always being anxious. The Veteran was afforded another VA examination in March 2017. The examiner concluded that the Veteran did not meet the diagnostic criteria for PTSD and "it is probably that he never did." The Veteran reported that he was never under fire or direct threat, his job in Vietnam was a paperwork job processor, that although he was in convoys, they were never under attack and that, at most, he heard explosions "in the distance." The examiner stated that the Veteran's nightmares were about events that never happened. The Veteran reported enjoying going to the beach, casinos, and the racetrack. The examiner noted that the Veteran did not demonstrate memory, concentration, or distractibility problems. The Veteran reported having a girlfriend who lived in another city and his relationship with her was good. He also described his relationship with his child as good and reported regular interactions with family and friends. The examination report also reflected the Veteran's social activities and leisure pursuits, which included playing checkers, traveling, and going to Las Vegas, Ocean City, and race tracks. The Veteran reported retiring in 1997 when he filed an equal employment opportunity (EEO) complaint and got a pension for PTSD. The Veteran stated "[w]hen I won my EEO complaint was when I discovered PTSD." With regard to his mental health, the Veteran stated, "Oh, you learn to move." The examiner noted a long history of heavy drinking and that the Veteran's "insomnia appear[ed] to be related to drinking, falling asleep, then early morning awakening." The examiner opined that it was more likely than not, that the Veteran's primary problem was alcohol use and "that his irritability and difficulty sleeping [were] a direct product of that." The March 2017 VA examiner wrote "when pressed about intrusive thoughts and memories [the Veteran] replied 'stuff like that, you know, seeing things on TV about Iraq.'" The examiner noted that he had a girlfriend with whom he went to "casinos, the beach, race tracks, etc., in other words loud, crowded environments." The examiner noted further that the Veteran had been in "sporadic treatment, the main focus of which [had] been obtaining sleeping aids." The examiner stated "in reviewing his medical records, I cannot find specifics about the Veteran's actual experiences in Vietnam, content of nightmares, other symptoms, etc." The examiner noted that the Veteran "could relate a list of symptoms, but when he was pressed for specifics tended to be vague, even evasive, and ultimately revealed content very different from what the jargon might imply." The Veteran denied depression, anxiety, panic, flashbacks, "true intrusive thoughts and memories," and suicidal ideation. The examiner also noted a long history of heavy consumption of alcohol with reports of drinking multiple six packs at times. The March 2017 VA examiner further noted the Veteran had irritable behavior and angry outbursts, chronic sleep impairment, and a persistent inability to experience positive emotions. The examination report also reflects the Veteran was alert, cooperative, and neatly but casually dressed. The examiner noted his mood was level, affect appropriate and pleasant. The Veteran laughed when discussing his age. It was noted the Veteran arrived early and had sat for a long time in a crowded waiting room with other Veterans without any agitation. The examiner noted the Veteran was able to maintain personal hygiene and basic activities of daily life, he was oriented to person, place, and time, he did not exhibit memory loss or impairment and scored three out of three after five minutes. The examiner finally noted the Veteran was capable of managing his own financial affairs. IV. Analysis Increased Rating After evaluating the evidence, the Board concludes that the Veteran's PTSD symptoms do not more nearly approximate the criteria for a higher 100 percent rating. While the Veteran's symptoms have at times caused major impairment in several areas, such as work, and mood, his PTSD has not been characterized by symptoms that are analogous to total occupational and social impairment. In fact, no examiner or treatment provider has determined that the Veteran's symptoms equate to total occupational and social impairment. Furthermore, each examiner has attributed some level of impairment to his non service-connected alcohol use. The Board notes the Veteran's representative stated in the July 2017 that the March 2017 examination did not comply with the Board's August 2016 remand directives because the examiner did not explicitly discuss the Veteran's lay statements regarding the worsening of his condition. However the Board's previous remand directed the examiner to consider the Veteran's lay statements. The examiner did note that he reviewed the entire case file. The examiner was not required to discuss the lay statements. Furthermore, there is no requirement that medical examiners provide reasons and bases. Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) ("[T]here is no reasons or bases requirement imposed on [medical] examiners."). Thus, the Board finds that the March 2017 examination substantially complied with the August 2016 remand directives. Furthermore, the 2008 and 2011 examiners noted that the Veteran's depression and alcohol dependence symptoms overlapped and interacted with his PTSD symptoms and it was difficult to determine the impact that each had separately on his social and occupational impairment. The 2017 examiner provided a thorough analysis and rationale in finding that the Veteran did not actually have PTSD but rather alcohol abuse which caused his insomnia. Because the 2017 examiner's thorough discussion and analysis demonstrated familiarity with the record (and, specifically, the Veteran's medical and occupational history) and included a discussion of rationale that is not contradicted by the factual record, the opinion is given the most probative weight in this matter. The evidence shows the Veteran has a girlfriend and a relationship with his daughter, siblings and friends. He describes his relationships as good. The Veteran enjoys playing checkers, travelling, and going to the casino, beach and racetrack. These factors weigh strongly against a finding that his symptoms produce total occupational and social impairment. Furthermore, the Board notes that the evidence during the appeal period does not show impairment in reality, to include persistent delusions or hallucinations, grossly inappropriate behavior, or a persistent danger of hurting self or others. In fact, the Veteran has consistently denied hallucinations. The Veteran has been noted to be oriented in all spheres and to have appropriate grooming and hygiene in all of his VA examinations and throughout his VA treatment records. Although the Veteran has reported persistent suicidal ideation, he has not been considered a danger to himself and denied suicidal ideation in July, August and October 2010 and also during the 2017 VA examination. Furthermore, the 2017 examiner noted that the Veteran listed the relevant symptoms associated with PTSD but when pressed for specifics, he was vague and evasive and provided content "very different from what the jargon might imply." Accordingly, a rating in excess of 70 percent for PTSD is denied. In making the above determination, the Board acknowledges that the use of the term "such as" in 38 C.F.R. § 4.130, Code 9411, demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran's PTSD that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. Id. In considering all of his symptoms, the Board finds that his disability picture does not more nearly approximate the criteria for a 100 percent rating throughout the appeal period. 38 C.F.R. § 4.7. TDIU Because the Veteran is service connected with one disability rated at least 60 percent (70 percent for PTSD), the Veteran's TDIU claim may be adjudicated on a schedular basis. See 38 C.F.R. §§ 4.16(a), 4.25. In his September 2004 claim, the Veteran stated that he had last worked in July 1997. In his December 2008 claim, the Veteran stated that he had last worked in 2007 as a clerk at a convenience store. The 2008 VA examiner opined that the Veteran's employability was "questionable" given his level of alcohol abuse. The examiner further noted that the Veteran's employability was poor but he was not unemployable. During the 2008 examination the Veteran stated that felt he could work again "in the right conditions." June 2010 VA treatment notes reflect the Veteran reported his symptoms made it somewhat difficult for him to work, take care of things at home or get along with other people. October 2010 VA treatment records noted the Veteran was working part time at a convenience store. In the 2011 VA examination the Veteran reported he knew he could not work because his nerves were so bad. However, the examiner noted that it was unclear to what extent his alcohol use contributed to his psychiatric symptoms and functional impairment. The examiner also opined that the extent to which disorders other than PTSD were independently responsible for the Veteran's current psychosocial and quality of life impairments was "strong." The 2017 examiner stated that the Veteran's irritability and difficulty sleeping were a product of his alcohol use. The 2017 examiner also noted that the Veteran had a girlfriend with whom he went to the beach, casinos and the racetrack. As explained previously the Board gives the 2017 examination the most probative weight. The Board may not consider the Veteran's nonservice-connected disabilities when determining whether the Veteran is unemployable for purposes of assigning a TDIU rating. See 38 C.F.R. § 4.16; Hatlestad, 5 Vet. App. at 529. As stated above, a TDIU rating must be based on the impact of service-connected disabilities, though consideration may be given to the Veteran's level of education, special training, and previous work experience. See id. Here, the preponderance of the evidence weighs against a finding that the Veteran's service-connected PTSD has rendered him unemployable. The Board acknowledges that the Veteran's PTSD is currently rated at 70 percent disabling, and that this rating represents a high level of impairment for that disability. Ultimately, disability ratings are "based primarily upon the average impairment in earning capacity, that is, upon the economic and industrial handicap which must be overcome." 38 C.F.R. § 4.15. A high disability rating is not determinative as to whether an individual is rendered unemployable, and a TDIU rating is based upon an "individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In this case, the evidence of record indicates that the Veteran's service connected disability is not so severe as to preclude him from maintaining substantially gainful employment consistent with his education and occupational background. Specifically, VA examinations from 2008, 2011 and 2017 indicate that his disability does not prevent him from obtaining employment. In fact, the 2017 examination attributes any functional impairment to the Veteran's non service-connected alcohol use. The Veteran has also held jobs during the appeal period, he reported working at a convenience store in 2010. He also maintains relationships with friends, family and a significant other. In addition, he travels and engages in many leisure activities. Because the evidence does not demonstrate that the Veteran's service-connected disability is sufficient to produce unemployability without regard to his nonservice-connected disabilities, the Veteran's claim for a rating of TDIU must be denied. Because the evidence of record preponderates against the Veteran's claim, the benefit-of-the-doubt rule does not apply. See Gilbert, 1 Vet. App. at 54. ORDER A rating in excess of 70 percent for PTSD is denied. Entitlement to a TDIU is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs