Citation Nr: 1326749 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 10-21 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss disability. 2. Entitlement to an increased disability rating for posttraumatic stress disorder (PTSD), rated as 70 percent disabling as of March 29, 2013, and as 30 percent disabling prior to that date. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active naval service from March 1969 to November 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, that awarded an increased rating of 30 percent for posttraumatic stress disorder and denied a compensable rating for bilateral hearing loss disability. In March 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims file. In January 2013, the Board remanded these matters to the RO via the Appeals Management Center (AMC) for additional development. That development has been completed. In April 2013, the AMC granted a 70 percent rating for PTSD effective from March 29, 2013, denied an increased rating prior to that date, and denied a compensable rating for bilateral hearing loss disability. Although the increased rating for PTSD represents a grant of benefits, a decision awarding a higher rating, but less that the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, these matters continue to be before the Board. The case has been returned to the Board for appellate review. The Board notes that the Court has held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court in Rice also found that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The Board finds that entitlement to a TDIU has been raised during the course of this claim for increased rating for PTSD, and it is thus being addressed in this decision. FINDINGS OF FACT 1. Throughout the initial-rating period, the Veteran's hearing impairment has been no worse than Level I in the right ear and Level I in the left ear. 2. The impairment from the Veteran's PTSD more closely approximates deficiencies in most areas than total impairment throughout the appeal period. 3. The Veteran has been unable to maintain any form of substantially gainful employment as a result of his service-connected disabilities throughout the period of this claim. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). 2. The criteria for a rating of 70 percent for PTSD, but not more, have been met throughout the period of this claim; the scheduler criteria for a 100 percent rating for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). 3. The criteria for a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832 ) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify has been met. The record reflects that the Veteran was provided notice in March 2009 regarding the evidence needed to substantiate his claims, as well as his and VA's respective responsibilities for obtaining such evidence and notice regarding effective dates and disability ratings. His claims were thereafter initially adjudicated in May 2009. Additionally, the duty to assist has been met as to providing an examination. The Veteran was afforded examinations for PTSD and bilateral hearing loss disability subsequent to the Board's remand. Examinations were also provided at the time the Veteran filed his claims. The Board finds that the examination reports comply with controlling law and that additional examination is not warranted. As to the duty to assist in obtaining relevant records, the Board notes that the Veteran had indicated at his hearing before the undersigned that he intended to submit private records of treatment. These were not submitted although the record had been held open for the Veteran to do so. As such, the Board instructed that appropriate efforts be made to obtain these. A letter to the Veteran dated in February 2013 requesting that he identify such records and sign waiver forms for their release yielded no response. Thus, the Board has determined that the duty to assist as to obtaining records has been met. In sum, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim. Accordingly, the Board will address the merits of the claim. II. Increased Ratings A. Legal Principles Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Hearing loss disability Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. "Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (a) When the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. (b) When the puretone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz , the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. 2. PTSD PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria are as follows. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for 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 in establishing effective work and social relationships. A 70 percent rating is warranted for 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Additionally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). B. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected bilateral hearing loss and PTSD. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. 1. Bilateral Hearing Loss Disability The Veteran filed a claim for service connection for bilateral hearing loss in December 2008. Service connection for that disability was granted in the May 2009 decision on appeal. In response to his claim for service connection, the Veteran had a VA audiological evaluation in April 2009; the audiologist reviewed the claims file and noted the Veteran's history in detail. The Veteran reported a work history of 35 years as a computer consultant. It was noted that the Veteran had trouble hearing in crowds and if people were not looking at him. He had never worn hearing aids. On examination his puretone thresholds in decibels were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 20 35 45 29 LEFT 15 20 45 85 41 Speech recognition was 92% in the right ear and 96% percent in the left ear. Applying the values above to Table VI results in a Level I Roman numeral designation for each ear. As to functional impairment, the examiner stated that the Veteran's hearing loss will affect his functioning and daily activities although it will not prevent him from working in the computer field. He will hear conversational speech well in the majority of situations but will have difficulty with background noise. Hearing aids would be beneficial in improving his ability to hear consonant sounds. The Veteran was afforded another VA audiological evaluation in February 2013; the audiologist reviewed the claims file and noted the Veteran's history. On examination his puretone thresholds in decibels were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 20 30 40 28 LEFT 10 15 40 85 38 Speech recognition was 92% in the right ear and 96% percent in the left ear. Applying the values above to Table VI results in a Level I Roman numeral designation for each ear. As to functional impairment, the examiner stated that the Veteran's hearing loss impacted his daily living and ability to work inasmuch as it affected the ability to hear high frequency voices, soft voices, and television. The hearing loss was first noted in the 1980's. Application of these Level I designations to Table VII results in a noncompensable rating. The readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment. The Court has held that, "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In accordance with this decision, the examiner in 2013 stated that the Veteran's hearing loss did have an effect on daily activities and his occupation. The examiner in 2009 also commented on functional impairment, but noted that it did not prevent the Veteran from working in his chosen field. The Board observes that the Veteran has worked for 35 years in the computer field, and there is no indication that he stopped working due to his hearing loss. In fact, medical evidence elsewhere in the claims folder shows that he stopped working due in large part to his PTSD symptoms. On review of the file, it is evident the criteria for compensable rating under Diagnostic Code 6100 are not met. Although the audiological evaluations clearly show the Veteran has hearing loss, the hearing loss has not yet met the compensable level under the rating schedule. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has considered the lay evidence provided by the Veteran in the form of his correspondence to VA and his comments to the examiners and hearing testimony, in which he generally contends his disability should be rated higher than the current noncompensable rating. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). In this regard, the Veteran has described the impact that his hearing loss disability has on his daily life and his job. The Veteran reported difficulty hearing as noted on the 2009 and 2013 examination reports. However, the rating schedule for hearing loss is a reasonable exercise of the Secretary's rulemaking authority. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Whereas the Veteran's hearing loss has not been shown by medical or lay evidence to be worse than that measured during audiological evaluation, the lay evidence does not support a claim for a compensable rating. Consideration has been given to assigning a staged rating; however, at no time during the period under review does the disability warrant a compensable rating under the schedular criteria. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for 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 evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The record reflects that the manifestations of the disability, hearing difficulty, are those specifically contemplated by the schedular criteria. Moreover, as discussed above, the Board has considered the statements of the Veteran and has found no indication in the record that the average industrial impairment from the disability would be to greater than that warranted by the schedule. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. 2. PTSD Historically, service connection for anxiety with cephalgia was granted in March 1971, with a 10 percent rating assigned at that time. The disability was characterized as PTSD in the May 2009 rating decision on appeal. The RO also increased the rating for the disability to 30 percent effective from the date of claim for an increase in October 2008. The Veteran appealed, seeking a higher rating. On review of the evidence, the Board finds the occupational and social impairment during this period does not more nearly approximate the total impairment required for a higher rating. The Veteran underwent VA mental health evaluations in November 2008 and again in March 2013. In addition, he underwent a VA neurological disorders examination in December 2008. Although the Veteran showed significant impairment, he was consistently alert and oriented during examinations. There is no psychosis, and the Veteran is not a threat to himself or to others. The evidence does not show the Veteran is incapable of self-care, and he has not been determined to be incapable of managing his own finances. In addition, he has maintained some social relationships. Specifically, on examination in November 2008, it was noted that the Veteran was married four times, with his most recent marriage lasting 10 years. He reported maintaining relationships with two of his ex-wives. His current wife has three daughters, two in college and one in high school. He had worked for the past 30 years doing contract computer work, with the last 20 years doing contract work on computers in Saudi Arabia. He had moved to his current location in the United States in 2002. It took him awhile to find work, but he has worked in the same job for three years. He had been let go about three weeks prior. He reported that his typical day was boring, consisting of working, then cooking supper for the family, which includes his wife and teenage daughter, then watching television. On weekends, he stated he has "stuff to do" and enjoys hiking with his two dogs. Although born into the Mormon faith, he was no longer active in any church. The Veteran reported that he started drinking in the Navy and continued to drink heavily thereafter. He cut down drinking about a year ago to about a bottle of wine per day and misses it. He reported that he did not keep alcohol in the home. He also reported that he had seen a counselor in the past who prescribed antidepressants, which the Veteran took for three weeks. This was his only mental health treatment. As to symptoms of PTSD, the Veteran reported nightmares and bad memories of Vietnam, persistent increased arousal and irritability. He reported that he did not feel depressed. On mental status evaluation, he was a few minutes late and dressed in clean, casual clothes. He was surprised to learn that the purpose of the visit was a psychological evaluation. He was cordial and cooperative. Speech and affect were normal and he appeared to be a good historian. The diagnosis was PTSD, GAF was 65. It was noted that the Veteran showed mild to moderate difficulties in social and occupational functioning, preferred to isolate himself and had disturbed sleep patterns. The examiner noted that the Veteran, who was a diver on a ship in Da Nang harbor, experienced numerous dangerous assignments in that capacity. During the December 2008 neurological examination, the Veteran reported, in pertinent part, that his biggest stressor was his recent job loss and employment issues. It was noted that he was laid off in October 2008. During his hearing before the undersigned, the Veteran testified that he had taken short term contract jobs in his field over the years since service because he knew he could not get along with people. He had about 30 jobs over the years since service. He has a very hard time getting along with people, particularly supervisors, in the office. He chose his field because he would not have to deal with people. During his March 2013 psychiatric evaluation, the Veteran reported that he had many terrifying experiences as a diver on Navy vessels in Da Nang harbor. As to diagnostic findings, the diagnoses included PTSD, major depression and alcohol dependence. The Veteran reported again that he had reduced his drinking to 1 to 1 1/2 fifths of wine per day. He reported that lack of employment for him and his wife and financial difficulties were current stressors. He had been unemployed for the last five years, and his wife had lost her job in real estate. He reported no friends or social network, but did note that he occasionally would run into a customer for his minimal home business at the grocer or elsewhere around town. His current GAF was 46. The examiner noted that his two dogs are his best friends. His wife was going to leave him awhile ago, but she decided to stay for the insurance benefits. They basically spend their days in the house apart, but occasionally go to dinner together. It is difficult for him to leave the house to do anything. As to clinical findings, the examiner noted difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or worklike settings, and inability to establish and maintain effective relationships. The examiner remarked that the Veteran's alcohol dependence was not the cause of his PTSD. It was noted that his PTSD was severe and that he continued to exhibit the level of PTSD described in the 2008 VA mental health examination. He had remained unemployed for five years, despite sending out hundreds of resumes, and had been twice unable to complete vocational rehabilitation training for economics. He failed to complete his masters degree. He was less reliable and productive with his time since 2008, and had been unable to work since that time. His social isolation had increased, and he had a basically asexual living arrangement with his spouse. His symptoms had increased, and the prognosis was guarded. His social and occupational impairment had increased and was not likely to get better with his current pattern of avoidance. PTSD accounted for 90% of his difficulties in occupational functioning, and he had been unable to work for five years. He was also socially compromised due to PTSD, with no friends and estrangement from his spouse. His severe secondary depression, sleepiness, irritability, and insomnia accounted for the other 10% of his occupational difficulties. The Board concludes the social and occupational impairment from the Veteran's PTSD more nearly approximates deficiencies in most areas, rather than total occupational and social impairment from the date of claim. The examiner in 2013 specified that the Veteran's problems for the last five years, including notable occupational issues, had been severe and were due to his PTSD and related problems. Accordingly, while the criteria for a 70 percent rating have been met at all times relevant to the claim, the criteria for a rating in excess of 70 percent are not met for this period. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher rating. The examination reports do not show 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. The Veteran's contentions, as noted in the examination reports, his written documents and his testimony, do not indicate this degree of impairment but rather are consistent with a rating of 70 percent. The Board has also considered the doctrine of reasonable doubt but has determined that it is not applicable to the claim for a rating in excess of 70 percent because the preponderance of the evidence is against the claim. The Board has also considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for 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 evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case the manifestations of the service-connected disability are specifically contemplated by the schedular criteria. The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order. III. TDIU A. Legal Principles 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340(a) (1) , 4.15 (2012). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total when the claimant is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. For the purpose of determining whether a claimant has one disability rated at 60 percent or more, disabilities resulting from common etiology or one accident will be considered one disability. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Additionally, the Court has recognized that, "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1)... [than] for purposes of a TDIU claim under 38 C.F.R. § 4.16." Kellar v. Brown, 6 Vet. App. 157, 162 (1994). While the former regulatory provision requires marked interference with employment, the latter requires evidence of unemployability. Id. B. Analysis The Veteran's service-connected disabilities consist of PTSD, rated at 70 percent; headaches, rated at 10 percent disabling from October 2008 and as 30 percent disabling from March 2012; tinnitus, rated as 10 percent disabling; and bilateral hearing loss disability, rated as noncompensable. The combined rating for the service-connected disabilities is in excess of 70 percent from October 2008. Therefore, the Veteran meets the minimum schedular criteria for a TDIU. In association with his for increased rating filed in October 2008, the Veteran testified before the undersigned as to his difficulty in obtaining a job over the years since 2008. He indicated that he was previously able to get jobs that were short-term, which helped him stay employed despite his PTSD. In his examination reports, he reported that he was unable to obtain employment despite significant efforts. In the most recent VA examination report, the examiner commented that the Veteran's occupational and social difficulties, which included being unable to get a job for the past five years, were due to PTSD and secondary depression. On review of the evidence above, to include the evidence pertaining to the Veteran's PTSD, the Board finds that the Veteran's service-connected disabilities are sufficient by themselves to render him unable to obtain or maintain substantially gainful employment. In the Board's opinion, the evidence supportive of the claim is at least in equipoise with that against the claim. Therefore, the Board concludes that the Veteran is entitled to a TDIU. ORDER An initial compensable rating for bilateral hearing loss disability is denied. A 70 percent rating, and no more, is granted for posttraumatic stress disorder (PTSD), throughout the period of time relevant to this appeal and subject to the criteria applicable to the payment of monetary benefits; a rating in excess of 70 percent is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs