Citation Nr: 1809007 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-11 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (anxiety neurosis) with depression. 2. Entitlement to service connection for right knee disability. 3. Entitlement to service connection for left knee disability. 4. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In June 2015, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for further development to include obtaining medical opinions. For the reasons discussed below, the Board finds that there has been substantial compliance with the development sought as part of the June 2015 remand. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the Board notes that the claims file reflects that the Veteran was previously represented by agent, Nicole Knoll (as reflected in a September 2014 Form 21-22a, Appointment of Individual as Claimant's Representative). However, in April 2017, the Veteran appointed the organization Disabled American Veterans (as reflected in an April 2017 Form 21-22, Appointment of Individual as Claimant's Representative). Given that, the Board recognizes the change in representation. FINDINGS OF FACT 1. The Veteran's PTSD symptomatology has resulted in impairment in relationships and employability resulting in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, but has not resulted in total occupational and social impairment. 2. The Veteran's current back disability did not have onset during active service and was not caused by active service. 3. The Veteran's current right knee disability did not have onset during active service and was not caused by active service. 4. The Veteran's current left knee disability did not have onset during active service and was not caused by active service. 5. The Veteran's service connected disability precludes him from securing and following a substantially gainful occupation consistent with his education and occupational background. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD (anxiety neurosis) with depression have not all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7,4.10, 4.21, 4.130, Diagnostic Codes 9411, 9413 (2017). 2. The criteria for service connection for a back disability have not all been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for service connection for right knee disability have not all been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 4. The criteria for service connection for left knee disability have not all been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 5. The criteria for a TDIU have all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See eg. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice letter sent to the Veteran in September 2010 and March 2012. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In this regard, as noted in the Board's June 2015 Remand, it is unclear as to whether or not the Veteran is in receipt of or applied for Social Security Administration (SSA) benefits. Since this time, the AOJ sent a letter dated in February 2016 requesting the Veteran provide any authorizations and information on whether he applied for SSA benefits or benefits other than VA compensation. A letter dated in May 2016 from the Veteran's agent at that time, states that the Veteran had not received any correspondence with respect to addressing the development outlined in the Board's June 2015 remand. Thereafter, a June 2016 Supplemental Statement of the Case (SSOC) was issued denying all issues on appeal. The Veteran submitted a SSOC Notice response stating that he had additional evidence to submit. In June 2016, the AOJ conducted an electronic inquiry in search of such records, which concluded that no SSA records were available for the Veteran. Since this time, the Veteran's current representative submitted an Appellant's Brief in September 2017 and December 2017. The arguments do not state the Veteran is in receipt of or has ever applied for SSA benefits or workman's compensation but instead outlines the AOJ's actions and negative results with respect to the June 2016 search for SSA records. Here, the record reflects the AOJ attempted to obtain any available records from the SSA, by first contacting the Veteran by written correspondence in February 2016; and second, by conducting a search for such records in June 2017, which documents that additional records were not found. With respect to the Veteran's representative's statement that the Veteran was not notified following the June 2015 Remand, but also acknowledging that the AOJ's search for SSA records resulted in a negative finding, the representative neither identified any available or outstanding records, nor provided any existing records. Given the above, the AOJ's attempt to obtain SSA records concluded such records were not on file, and per the Veteran's representative's discussion of the AOJ's June 2017 record search, the representative has also confirmed notice of the AOJ's inability to obtain these records. Since this time, and despite such knowledge, it does not appear that the representative has attempted to obtain and provide additional evidence. The Board finds that the AOJ therefore complied with the Board's remand instructions in this regard, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and VA treatment records are associated with the claims file. VA provided relevant examinations as discussed in further on in the decision. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Service Connection - Bilateral Knee and Back Claims Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). The Veteran contends that he injured his back and knees while serving in Vietnam, and relates his current back disability to his in-service injury. In his August 2010, Statement in Support of Claim, the Veteran asserted that he injured his back in-service while carrying his heavy rucksack and weaponry in rough conditions, which eventually took a toll on his back and knees. According to the Veteran, he did not report his orthopedic problems at separation because he was undergoing stomach surgery and this overshadowed the orthopedic problems. The Veteran has been diagnosed with dextroscoliosis, mild degenerative spine disease, and bilateral knee arthritis satisfying the first element of a service connection claim. Thus, the dispositive issue in this case is whether the claimed disabilities are related to active service. In this case, as discussed below, the preponderance of evidence is against a finding that dextroscoliosis, mild degenerative spine disease, and bilateral knee arthritis are so related. Pertinent evidence of record includes service treatment records and post-service VA treatment records and examination reports. The Veteran's service treatment records are devoid of any complaints, treatment, or diagnosis related to the knees. With respect to the Veteran's back disability claim, service treatment records do show that in January and February 1967 he reported with complaints of back pain during training which was felt to have a psychological component. A July 1969 separation examination report notes the examiner gave a normal clinical evaluation with regard to any relevant system or anatomy. The associated medical history report shows the Veteran denied ever having or currently having any joint problems and did not report symptoms related to the knees or back pain. However, he did report having a history of mumps, frequent and severe headaches, and stomach trouble. The post-service medical records include VA treatment records and VA examination reports. These records reflect treatment for current bilateral knee and back conditions to include medication management as well as multiple x-ray reports of the lumbar spine and knees. Specifically, x-rays of the knees dated in May 2009, June 2009, September 2010, and June 2016. X-rays of the lumbar spine were conducted in April 2011 and June 2016. There is no associated etiology opinion. In the June 2015 Remand, the Board determined the April 2011 VA medical opinion was inadequate as it did not fully articulate a rationale for the opinion. The April 2011 VA examination report noted the Veteran's complaints that his low back pain was now in the same place as it had been in service. The examiner diagnosed dextroscoliosis and mild degenerative spine disease. He opined that the disability is less likely as not due to service. He explained that the Veteran's scoliosis was mild and most likely developed in adolescence and was idiopathic in the absence of other conditions that predispose scoliosis such as neuromuscular conditions. The examiner went on to state that it is possible that the Veteran had a low back strain while in service in the setting of scoliosis, and it is possible that carrying a heavy pack in the setting of scoliosis could have made the back strain at the time more likely but it is less likely than not that military service led to this Veteran's scoliosis and life-long back pain. Given the ambiguity of the April 2011 opinion, the Board determined further development was necessary to determine whether the Veteran's diagnosed back disability was a preexisting congenital defect or disease. Accordingly, on remand, the AOJ was directed to obtain a medical opinion addressing whether the current back disability is at least as likely as not due to the rigors in service as reported by the Veteran, either by direct incurrence or by aggravation of the scoliosis that the examiner found pre-existed service. The Veteran was afforded VA examinations of the back and knees in June 2016 with an August 2016 addendum opinion to determine the etiology of current back and bilateral knee disorders. On examination in June 2016, the Disability Benefits Questionnaires (DBQs) indicate that the examiner reviewed the Veteran's claims file and medical records in conjunction with the evaluation. The resulting examination reports note the Veteran reported that he first injured his back and knees in 1967 during military service due to carrying heavy gear while serving in Vietnam. He reported that he sought treatment for his back at the base hospital in Saigon on a few occasions while in Vietnam. He also reported he sought treatment on three occasions at the medical clinic for bilateral knee pain and he was prescribed medication to help alleviate his symptoms of back and knee pain but did not recall having x-rays or referral to orthopedics. Thereafter, the Veteran reported he returned to the field denying any other injury to the back prior to or following service discharge. He also reported bilateral knee and back pain has continued from that time to the present treated with over the counter medication since 1969. Following examination, the practitioner diagnosed minimal osteophyte formation of the lumbar spine and no presence of scoliosis as identified by June 2016 x-rays. The back DBQ indicates the practitioner compared current x-ray findings to those conducted in April 2011, which identified mild dextroscoliosis and osteophytes at L2-L3. The practitioner opined that the Veteran's scoliosis is considered a disease. In support of this finding, the practitioner explained that spinal deformity conditions can affect anyone in any phase of life and there are several types of scoliosis: (1) congenital and infantile occurring in children three years old or younger; (2) juvenile, occurring in patients four to 10 years old; and (3) adolescent, occurring in patients 10 to 8 years old, some with a known cause and others without. The practitioner explained that scoliosis can develop in the lumbar spine and progressive scoliosis may cause the spine to start to rotate, pulling the ribs and further distorting the shape of the spine, creating a rib hump on the back and causing one side of the body to be taller than the other. Furthermore, the practitioner explained that when scoliosis is caused by muscle problems and does not involve spinal rotation, it is almost always reversible. With respect to whether the disease clearly and unmistakably (obvious, manifest, and undebatable) preexisted active service, the practitioner concluded that it is unknown whether the Veteran's scoliosis preexisted active service. In so finding, the practitioner noted that the Veteran's June 1966 enlistment examination does not document scoliosis as a preexisting condition and the first diagnosis of scoliosis was identified by x-ray in April 2011. With respect to whether it is at least as likely as not (a probability of 50 percent or greater) that scoliosis and any other back disability began or is related to active service, the practitioner concluded that scoliosis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. Specifically explaining that scoliosis is most often found in adolescents and is idiopathic. Whereas here, the first medical evidence of record shows the Veteran was diagnosed with dextroscolisosis as identified by x-rays in April 2011 and scoliosis of the lumbar spine was not apparent on subsequent June 2016 x-rays. The practitioner further opined that it is less likely than not, less than a 50 percent probability, that any other back disability is related to complaints of back pain in-service and lumbar strain documented in the January and February 1967 service treatment records. Specifically, the practitioner explained that treatment of back pain during service was not severe in nature to result in any chronic disability of the lumbar spine currently diagnosed. In so finding, the practitioner explained there is an approximate 40 year gap between the in-service treatment for back pain to the next time the Veteran sought treatment in 2007. The practitioner explained that the evidence of record shows the Veteran did not seek treatment following the January and February 1967 in service complaints of back pain again until many years following the back incident, and, during this time, the Veteran's 20 year career involving heavy labor daily for at least half a regular work day does not make it likely that back pain from 1967 is related to current disability. The Board recognizes that in part of the opinion, the examiner used the language "it is not likely that the original said back injuries in the military are casually (sic) related in any way to his current back condition." (original in uppercase). Although this uses an inapplicable legal standard given, it is clear from reading the opinion as a whole and in particular the last paragraph, which does use the correct standard, that the examiner's opinion was that it was less likely than not that his current back disability is related to what was present during service. The opinion is adequate and well supported by rationale. With respect to service connection for the bilateral knees, the resulting DBQ documents the examiner diagnosed bilateral knee arthritis as identified by x-rays in 2009. Following examination, the practitioner opined that it was less likely than not (a probability of 50 percent or greater) that bilateral knee condition was incurred in or caused by the claimed in-service injury, event or illness. The practitioner explained that the evidence of record shows the Veteran first sought treatment for knee pain in 2009, which reflects the first clinical diagnosis of knee disability. The examiner noted the Veteran's reports of knee injury in-service in 1967, pointing out the service treatment records were devoid of any knee injuries or problems. The practitioner concluded this is also consistent with the July 1969 separation examination findings of a normal exam. In so finding, the practitioner also concluded that bilateral knee arthritis is likely due to the Veteran's age and weight (noting that his BMI from 2007 to present have consistently run 30 and above and he was the age of 62 when diagnosed in 2009), the practitioner explained that obesity may be the strongest modifiable risk factor for arthritis noting this varies by joint and the association is strongest for the knees. For the following reasons, the Board finds that entitlement to service connection for bilateral knee and back disabilities is not warranted. The Board acknowledges the Veteran's reports that the onset of bilateral knee and back problems was during military service. Specifically, that he injured his knees and back in-service while marching and carrying his heavy rucksack and weaponry in rough conditions, which eventually took a toll on his back and knees. He also reported since that time, he has continued to have the same knee and back pain. In this regard, given the following reasons, the record tends to show that the Veteran is not an accurate historian. In assessing the Veteran's credibility regarding his symptoms of knee and back pain, the Board looks to the consistency of his statements and clinical histories. First, although the Veteran states that he continued to have knee and back pain after his in-service injury, despite his reports, his service treatment records do not document he sought treatment for knee pain or that he ever reported for treatment again after the reports of back pain in 1967 and he remained in service for more than two years after that. Second, he made no mention of his knee or back problems at the time of separation from service when he completed the report of medical history. Third, the record shows the first evidence of clinical diagnosis for any associated condition was VA x-rays dated in April 2011. This is nearly 40 years following service discharge. The Board has considered the Veteran's statement that he did suffer symptoms continuously since his in-service incident of back symptoms, it is highly unlikely that there would be no documented retrievable evidence of treatment until nearly 40 years later. Likewise, the Board has considered the Veteran's statement that he also injured his knees in service and suffers symptoms continuously since his in-service incident of knee symptoms; it is highly unlikely that there would be no documented retrievable evidence of treatment until May 2009. In this regard, the Board is not rejecting the Veteran's reports of continuous symptoms of bilateral knee and back pain since service as not credible based on lack of corroborating medical evidence. Rather, this determination is based on comparison of the Veteran's reports for his claim with his reports at other times as to the existence and timing of his symptoms, as well as a lack of reports in certain records where they would be expected. For instance, during military service. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Cf. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As such, the Board has considered the Veteran's assertions and acknowledges the Veteran's contentions of when his symptoms arose, but affords them only the most minimal of probative value. As to non-expert or lay opinions with regard to diagnoses or a relationship of a condition to service ("nexus"), whether such opinions are competent evidence depends on the question at issue and the particular facts of the case. A review of the record evidence shows there is no indication that the Veteran has medical expertise. Whether a specific incident in service nearly 40 years ago of knee and back pain, leads to current disability, is not a simple question subject to non-expert opinion evidence. Thus, the Veteran's reported history, when considered with the medical evidence of record, and in the context of the record, as a whole, is more probative than the Veteran's general lay statements. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Moreover, there is no contrary medical opinion in the evidence of record. Given the above, the Board finds that the most probative evidence of record shows that the Veteran does not have a current knee and back condition that is due to incident during service and did not begin in service. Specifically, the July 2016 examination reports with August 2016 addendum opinion regarding the etiology of the Veteran's bilateral knee and back conditions weigh against his claims. The examination reports indicate the examiner reviewed the overall clinical data and concluded that the post-service treatment demonstrates that in-service back injury noted in January and February 1967 was not severe in nature to result in any chronic disability of the lumbar spine currently diagnosed. In so finding, the practitioner explained there is an approximate 40 year gap between the in-service treatment for back pain until the Veteran sought treatment in 2007. Concerning the bilateral knee condition, the practitioner concluded that the despite the Veteran's reports of knee injury in-service, the most probative evidence of record shows the Veteran was first diagnosed with bilateral knee arthritis in 2009. The examiner concluded this is also consistent with the July 1969 separation examination findings of a normal exam and the Veteran's associated medical history report, which is devoid of any reports indicating ongoing knee pain. The examiner concluded that the Veteran did not seek treatment until nearly four decades following service discharge. The July 2016 VA examiners opinion with August 2016 addendum opinion is entitled to significant probative weight because the examiner explained the reasons for her conclusions based on an accurate and comprehensive review of the relevant evidence of record, including the Veteran's lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this regard, if the Veteran had been experiencing recurrent symptoms of knee and back problems during service, it would be reasonable to infer that he would have reported such symptoms during his July 1969 separation report of medical history, especially because he did report to medical for his back in January and February 1967 but thereafter did not report having back pain or any back problems until nearly forty years after service discharge. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) (stating that the Board, as fact finder, is permitted to draw inferences based on the evidence, so long as any such inference does not result in a medical determination). Thus, the fact that the Veteran did not report having any problems related to the knees or back for many years post-service separation, when he presently contends that he has experienced knee and back pain since service weighs against any assertion that these symptoms began during service and continued after service. Notably, service treatment records during this period reflect that the Veteran sought treatment for other conditions; thus it is reasonable to infer that had he experienced consistent knee and back pain he would have reported it. Especially considering he reported back pain in service in January and February 1967 but did not report having back problems or any diagnosis related to the back on his July 1969 separation examination and report of medical history, but nearly 40 years later as shown in post-service treatment records. Furthermore, as noted on the Veteran's January 1965 separation examination report, the Veteran did report having other conditions to include mumps, frequent and severe headaches, and stomach trouble. Thus the July 2016 medical opinions of the VA examiner that the Veteran's back pain in service was not of such severity to result in current back condition and current knee disability is related to the Veteran's age and weight is probative evidence against the Veteran's claim. Notably, during the pendency of the appeal, VA treatment records document treatment for hypertension to include the practitioner's notations that the Veteran's BMI classification is overweight and he was counseled on the risk of obesity and the benefits of weight reduction to assist with controlling this condition. The probative evidence of record indicates that the Veteran does not have a bilateral knee or back disability related to incident in service. Specifically, the Veteran's earliest indication of bilateral knee and back diagnoses, as shown by the medical evidence of record, was many years following separation from active service. The Board notes that this lapse in time weighs against the Veteran's claims. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving a claim). In arriving at the decision to deny these claims, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). III. Increased Rating Claim Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's PTSD with depression has been rated under 38 C.F.R. § 4.130, Diagnostic Codes (DC) 9411-9413. See 38 C.F.R. § 4.27 (2017) (explaining use of diagnostic code numbers). Almost all mental health disorders, including the one at issue, are evaluated under the General Rating Formula for Mental Disorders (Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. See 38 C.F.R. § 4.130, DCs 9411- 9413. Under the General Rating Formula, a 70 percent disability 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 total schedular rating of 100 percent requires: 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 118. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. For purposes of considering the evidence in connection with the PTSD issue, the Board notes that the Global Assessment of Functioning (GAF) scale is a scale from 0 to 100, reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) ("DSM-IV") (100 representing superior functioning in a wide range of activities and no psychiatric symptoms). See also 38 C.F.R. §§ 4.125, 4.126, 4.130. In this regard, the Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to "DSM-IV," AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994). The amendments replace those references with references to the recently updated "DSM-5," and examinations conducted pursuant to the DSM-5 do not include GAF scores. Although the Veteran's case was certified post-DSM-5, a majority of her treatment visits and evaluations were conducted prior to that time and therefore include a relevant GAF score. The Board will consider these GAF scores in adjudicating the claim, as doing so is most advantageous to the Veteran in this case. A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A GAF of 41-50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning. A GAF of 51-60 denotes moderate symptoms (e.g. flat affect, circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). A GAF of 61-70 denotes some mild symptoms (e.g. depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g. occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. For the following reasons, the Board finds the Veteran's PTSD symptoms most closely approximate the criteria for a 70 percent evaluation, but no higher. The instant claim was filed in August 2010. The Veteran underwent VA psychological examination in April 2011 and October 2012. A GAF of 45 was assigned due to severe PTSD symptoms including daily anxiety, frequent depressed mood and panic attacks, suicidal ideation without plan or intent, problems with personal hygiene and activities of daily living, problems with obsessive ritualistic behavior and impulse control as well as short-term memory. The examiner noted the Veteran had few friends and was unable to work due to his mental health problem "(in addition to his back problem)" despite continuous medication. The April 2011 examination report documents the Veteran reported having anger outbursts with his wife occasionally and he maintained good relationships with his two adult sons. The resulting October 2012 examination report indicates the Veteran reported he has been married to his third wife for 5 years. The psychological evaluation report also reflects the examiner's opinion that the Veteran's disability caused occupational and social impairment with reduced reliability and productivity. In so finding, the practitioner explained that Ongoing VA psychology notes from the Veteran's treating psychologist include a November 2011 note recording symptoms of panic attacks weekly, nightmares daily, hypervigilance, and depressed mood. His psychiatrist noted symptoms of angry outbursts, difficulty in establishing and maintaining effective relationships, daily anxiety, suicidal ideation without plans, problems with personal hygiene and activities of daily living, ritualistic behavior, problems with impulse control, and isolation, despite continuous medication. In August 2013, the VA psychologist noted the following: The veteran appeared depressed during the session. The veteran reported having difficulty with depressed mood. The veteran reported checking doors multiple times at night due to thoughts of threat. The veteran reported having high anxiety frequently. The veteran's high level of hypervigilance, low trust, difficulty with anger, depression, and anxiety, negatively impact his relationships with others and his ability to effectively maintain gainful employment. This provider considers the veteran to be unemployable due to the above noted symptoms and their persistence over time. The Board also notes that during the appellate term, the Veteran's GAF score was assigned between 45-50 as noted on the April 2011 VA examination as well as during treatment, and is wholly consistent with the assignment of a 70 percent disability rating at all times relevant to this claim. The Board acknowledges the statements of the Veteran and his friend during the appeal, which describes the functional impairment caused by PTSD symptoms. A September 2010 letter from a long-time close friend indicates that the Veteran's anxiety neurosis symptoms appear to be worsening. Additionally, the Board has considered the December 2017 and January 2018 arguments of the Veteran's representative that service-connected PTSD had not been clinically evaluated in over 5 years and therefore the record does not adequately indicate the current state of his mental disorders and how they impact his employment. In this regard, as discussed above, the Veteran has continued to seek treatment throughout the appellate term, and the Veteran's reported symptoms are consistent with those of the VA examination reports and treatment records. The probative evidence of record does not establish that he is totally impaired warranting another VA examination. With respect to the Veteran's reported history, under certain circumstances, lay statements may be sufficient for disability claims by establishing the occurrence of lay-observable events, the presence of disability, or symptoms of disability that are susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is competent to testify to factually observable injuries and treatment, the timing of the observable symptoms of his disabilities, and receipt of medical treatment because these are observable by an individual's own senses and within the realm of knowledge of a lay person. Id. These reports must be considered with the entire record evidence. However, the Board finds the specific, reasoned opinions of the VA examiners, and the objective evidence of the trained medical professionals, who reviewed the Veteran's claims file and examined him, to be of greater probative weight than the more general lay assertions. Specifically, a higher schedular rating of 100 percent is not warranted because the Veteran's symptoms and overall level of impairment did not more nearly approximate the criteria for such a rating and the evidence was not approximately evenly balanced on this question. The Veteran did not have symptoms that approximated those listed in the criteria for a 100 percent rating. Specifically, the medical and lay evidence of record does not establish the Veteran had symptoms of delusions or hallucinations, grossly inappropriate behavior, or persistent danger of hurting himself or others. The Board notes that the April 2011 examiner as well as VA therapy treatment notes documents the Veteran's reports that he is unable to perform activities of daily living (including maintenance of minimal personal hygiene). Additionally, that he admitted thoughts of suicide without plan or intent. This is evidence against a finding of persistent danger to himself or others. The Board finds that the most probative evidence of record shows that these symptoms did not cause total social and occupational impairment. First, examination reports and medical evidence of record does not show the Veteran was disoriented to time or place, nor describe that his personal appearance and hygiene were poor. He was observed as cooperative. The April 2011 VA examiner specifically noted there was no impairment with thought process, communication or inappropriate behavior. Treatment records reflect the same. The April 2011 examination report documents reports of suicidal ideation described as fleeting without plan or intent. Furthermore, the Veteran reported difficulty with personal hygiene and activities of daily living reporting that he showered twice per week. However, examination reports and treatment records reflect that the Veteran is able to drive a car and also has the ability to maintain his own finances. Additionally, the Veteran has maintained some social relationships to include his current marriage and his reports describing a good relationship with his two sons. Based on the weight of the lay and medical evidence of record, the Board finds that PTSD symptoms demonstrated throughout the appeal process more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood as described in the criteria for a 70 percent rating rather than the total occupational and social impairment in the criteria for a 100 percent rating. In addition, although the Board finds below that entitlement to a TDIU is warranted based on PTSD is warranted, as discussed below, the total occupational impairment listed in the criteria for a 100 percent rating and inability to obtain or maintain substantially gainful employment required for a TDIU are different standards. The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. In this regard, the Board notes that the availability of higher schedular ratings plays no role in an extraschedular analysis and that it is inappropriate for the Board to deny extraschedular referral on this basis. The Board finds that the Veteran's symptoms of PTSD, are contemplated by the schedular rating criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). For all the foregoing reasons, the Board finds that, the preponderance of the evidence is against entitlement to higher disability rating at any time during the period on appeal. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating for PTSD disability, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). IV. TDIU The Veteran seeks entitlement to a TDIU due to service-connected PTSD. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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 the impairment caused by any nonservice-connected disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). In reaching such a determination, 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). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under 38 C.F.R. § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R.§§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332(1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. During the period from September 9, 2010, the Veteran was granted service connection for PTSD, evaluated as 70 percent disabling; and residuals of right hemicolectomy and partial duodenectomy; evaluated as 10 percent disabling. Thus, the remaining question, therefore, is whether any of the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation during this period of the appellate term. By way of background, in his May 2012 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that he was unable to work due to service-connected PTSD and non-service connected back disability. He reported that he was unemployed since the 1990's and checked the boxes indicating that he was receiving or expect to receive disability retirement benefits and workers compensation benefits. Turning to the evidence, as discussed in the Board's decision above, it is established that the Veteran has remained unemployed related to impairment caused by service-connected PTSD disability. The April 2011 and October 2012 VA psychological evaluation reports reflect the examiner's opinion that the Veteran would have difficulty sustaining gainful employment due to his psychiatric problems. With respect to employment history, the April 2011 and October 2012 VA mental health examination reports, as well as the July 2016 back and knee DBQ's document the Veteran reported he last worked in the late 1990's or early 2000's and stopped due to back pain and anxiety. Additionally, following separation from active service he was employed for a period of 20 years working full time in a warehouse from the mid 1970's until the early 1990's. His duties included emptying heavy boxes weighing between 35 to 50 pounds and lifting 60 pounds daily, averaging 4 hours daily. Thereafter, his employment consisted of odd jobs for a short period of time. In an August 2016 addendum opinion the July 2016 VA examiner reviewed the Veteran's statement that he worked in a warehouse for a period of less than 3 months and not for 20 years as documented in the July 2016 VA back examination report. The practitioner opined that regardless of the Veteran's employment status, the July 2016 medical opinion is confirmed. Additionally, in August 2013, the VA psychologist noted the following: The veteran appeared depressed during the session. The veteran reported having difficulty with depressed mood. The veteran reported checking doors multiple times at night due to thoughts of threat. The veteran reported having high anxiety frequently. The veteran's high level of hypervigilance, low trust, difficulty with anger, depression, and anxiety, negatively impact his relationships with others and his ability to effectively maintain gainful employment. This provider considers the veteran to be unemployable due to the above noted symptoms and their persistence over time. In light of the above, the record establishes that the Veteran's service connected PTSD causes impairment in employment that involves physiological and psychological stress response as a result of daily anxiety, depressed mood, panic attacks, and suicidal ideation. Additionally, the evidence of record shows that he has remained unemployed during the pendency of the appeal. The medical evidence documents the Veteran's reports that he suffers from problems with anxiety and depression, all of which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The VA medical opinions dated in April 2011 and October 2012 found that the Veteran's symptoms impacted his ability to maintain employment, due to the Veteran's difficulty with anxiety, irritability, anger, difficulty concentrating, depression, and suicidal ideation. Specifically, the Veteran reported he was unable to continue work due to increasing anxiety and social difficulties and symptoms of impaired productivity due to anxiety. Notably, the October 2012 VA opinion concluded that PTSD caused occupational and social impairment with reduced reliability and productivity. In that opinion, however, the examiner concluded that it would be difficult for the Veteran to sustain gainful employment because of his psychiatric symptoms. This is bolstered by the 2013 medical evidence discussed above. Ultimately the issue of whether the service connected disability cause unemployability is a legal and not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). In light of the forgoing, it is clear that the Veteran's mental health symptoms interfere significantly with his ability to work in his professional settings of janitor, distributor, and at a clothing store as noted on his May 2012 application. The medical evidence together with the Veteran's own statements and his work history given considerable support for a conclusion that his service-connected psychiatric disorder alone, irrespective of his non-service connected back disability, render him unable to secure and follow a substantially gainful occupation. Resolving doubt in the Veteran's favor, the effects of his psychiatric disorder alone, have rendered him unemployable for VA purposes throughout the appeal period and entitlement to a TDIU is warranted. 38 C.F.R. § 4.16. ORDER Entitlement to a rating in excess of 70 percent for PTSD with depression, is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for right knee disability is denied. Entitlement to service connection for left knee disability is denied. Entitlement to a TDIU is granted, subject to the regulations governing the payment of monetary benefits. ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs