Citation Nr: 0915715 Decision Date: 04/27/09 Archive Date: 05/07/09 DOCKET NO. 07-05 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD W. H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from February 1987 to July 1987, and from December 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Roanoke, Virginia, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to the benefits sought. The Board notes that the Veteran requested a hearing before a Veterans Law Judge, to be held at the RO, in February 2007, when he filed his substantive appeal. In January 2008 correspondence, however, the Veteran stated in response to an RO inquiry that he wished to withdraw his hearing request. The RO scheduled a hearing in February 2009, but the Veteran, consistent with his withdrawal of the request, did not appear. FINDINGS OF FACT 1. PTSD is manifested by occupational and social impairment with reduced reliability and productivity due to depression, apathy, sleep disturbances, nightmares, intrusive thoughts, anger and irritability, and anxiety with some panic attacks. There is no suicidal ideation, disorientation, neglect of personal hygiene, or inability to function independently and effectively due to PTSD symptoms. 2. The Veteran is not shown to be unable to obtain or retain substantially gainful employment due to service connected disability; the sole service connected disability is PTSD, rated 50 percent disabling. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 50 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.130, Diagnostic Code 9411 (2008). 2. The criteria for assignment of TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.16, 4.18 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Here, legally sufficient notice was provided to the Veteran in correspondence dated in December 2005 and April 2008. The December 2005 letter addressed the claim for TDIU prior to adjudication, and informed the Veteran of the elements of his claim, the evidence and information needed to substantiate the claim, and the respective responsibilities of VA and the Veteran in obtaining such. The April 2008 letter accomplished the same with regard to the evaluation of PTSD. It also again informed the Veteran of required evidence in his TDIU claim. Although not strictly required by court precedent, the RO also set forth the specific rating criteria applicable to the evaluation of PTSD in June 2008 correspondence. Both claims were then readjudicated in an October 2008 supplemental statement of the case. The Board finds that the Veteran has been provided with the information needed to fully and meaningfully participate in the adjudication of his claims. VA additionally has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has here obtained extensive VA treatment records as identified by the Veteran, and has associated with the claims file a Social Security Administration (SSA) decision and supporting medical evidence. VA examinations were performed in connection with the appeal in May 2006 and May 2008. Although VA has repeatedly requested employment information from the Veteran, he has failed to supply such. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Evidence A November 2003 SSA disability benefits decision indicated that the Veteran was found to be disabled since November 2002. The medical evidence in support of this decision involves a period of time outside the scope of the appeal under consideration here, but is considered to provide a historical perspective on the Veteran's current complaints. The Veteran alleged he could not work due to his "mental instability, depression, [and] PTSD." He also indicated that medications for his mental health problems rendered him drowsy. He stated that he last worked as a restaurant manager in November 2001; he had been a police officer/Sheriff's deputy until March 2001. Dr. AED indicated in an October 2002 evaluation that the Veteran's history shows violent mood swings with flat affect, crying, memory impairment, and difficulty concentrating. He had a history of arrests and incarceration for domestic violence/protective order violations. Medications have stabilized his mood, but the Veteran still reported angry episodes, and suicidal and homicidal ideation. He reported he "keeps getting fired because he cannot remember how to do stuff and what time to get to work." The doctor opined that the Veteran would not be able to complete a normal work day, as he could not accept criticism or instruction well, and could not get along with people. The conditions considered in rendering this opinion were "mental instability, severe depression, PTSD, and severe anxiety attacks." In a March 2003 evaluation, Dr. SS indicated that the Veteran complained of difficulty concentrating, memory loss, and confusion. The doctor noted the Veteran had not been fully compliant with treatment in the past, and that he was going through a "nasty marital separation" that caused him a great deal of stress. The Veteran reported, however, that he had worked full time from June 2002 to November 2002, until he was jailed on a domestic violence charge. He now stated he was compliant with his medications. The doctor observed that the Veteran's mental status is "entirely normal" and that his allegations "are less than fully credible." Dr. SS stated that there were some limitations in social areas, but the Veteran could be successful in other areas. He also considered the impact of "depression, anxiety, PTSD, and mental instability." VA treatment records from July 2004 to December 2005 reveal ongoing counseling related to complaints of PTSD and depression. He used a variety of medications for depression and psychosis. The majority of complaints and treatment related to anxiety over custody and visitation with his son; the Veteran was required to have supervised visits due to a protective order. The same incidents which had led to the order had also resulted in the loss of his job as a police officer. Records reflect that the Veteran was initially nervous, but after several successful visits he was happy and relaxed. He did, however, grow more anxious as time passed, worrying over what might go wrong. Doctors commented that there was a synergistic effect between PTSD symptoms and his marital worries. The Veteran was seen for intake into a PTSD treatment program in September 2004. At the screening, he reported problems with nightmares, flashbacks, and intrusive thoughts. Symptoms increased with his divorce and loss of work. His mood was depressed and anxious, but speech and thought process were normal. In November 2004, the Veteran broke off treatment for a time to go work at a National Park. A March 2005 note from a social worker indicated that the Veteran's depression was related mainly to his family problems, and subsequent notes reflect a worsening of depressive symptoms as the Veteran went to family court. In August 2005, the Veteran reported having an angry outburst with his father and spending too much money. In September 2005, however, the Veteran indicated he was doing better. He was working at a horse farm and enjoying it. The Veteran was again turned down for visitation with his sons in October 2005, and was "quite angry" with the VA clinic for a perceived lack of support on the matter. Global Assessment of Functioning (GAF) scores in the 40's were assigned. A Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (DSM-IV) at 32). A score of 41-50 illustrates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A score of 51-60 represents "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co- workers)." Id. A reopened claim for TDIU benefits was filed in November 2005. On a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran indicated that PTSD/depression prevented him from working. He stated that he had last worked in March 2001 for the Chesterfield County police, though he also stated that he had tried numerous jobs but had not held any for more than a few weeks due to service connected disabilities. In a December 2005 statement, the Veteran stated that he was unemployable due to increased psychiatric symptoms and medications. He again indicated that he had not worked since March 2001. A VA psychiatric examination was conducted in May 2006. The examiner reviewed the claims file in conjunction with the examination, and noted a history of PTSD and depression associated with family problems. He commented that the Veteran seemed more depressed than recent treatment notes indicated. The Veteran complained of daily intrusive thoughts of his Gulf War experiences, which contributed to his anxiety. Sleep was erratic, sometimes good and sometimes bad. He complained of temper problems and a "significant degree" of social withdrawal. He was poorly motivated and felt hopeless about the future, especially as it related to his child custody situation. He denied any social support network, and indicated that he had difficulty handling the stress of even simple jobs. He had worked as a boat cleaner for several months, and as a horse trainer for a month or so. The doctor commented that PTSD symptoms seemed to be exacerbated by the stress of the child custody issues. He took medication, but complained of anxiety and depression. On interview, the Veteran was clean and well groomed. He was polite and cooperative, and appeared well oriented. Affect was blunted and mood was depressed. He described and displayed significant anxiety, particularly when discussing his military experiences. Speech and thought processes were normal, and he denied hallucinations or delusions. The Veteran reported suicidal ideation without plan or intent. PTSD and moderate major depression were diagnosed. A GAF score of 51 was assigned. The doctor related the depression mainly to the ongoing custody dispute, and stated that a GAF based solely on PTSD would be 56 or 57. The two conditions together have caused a significant degree of distress, and impair the concentration, motivation, and consistency needed in "most forms of employment." VA treatment records from January 2006 to December 2007 reveal continued psychiatric treatment. In January 2006, he reported recurrent nightmares related to his children. He was due back in court soon. In February 2006, in relation to PTSD his doctor stated he was doing "mostly well." He was appropriate, with euthymic affect. He denied suicidal ideation. In April 2006, the Veteran was arrested in connection with a conflict with his ex-wife. He was jailed for 15 days and paid a fine. By July 2006, he reported that he was doing better overall. He was dating a woman, and though he reported trouble sleeping, he was noted to be brighter and less anxious than at previous sessions. In January 2007, the Veteran again reported difficulty with sleep. He had nightmares about his children, and reported episodes of irritability and anger when under stress. He adjusted his own medication in April 2007, after complaining of a reaction and weight gain. He reported experiencing greater anxiety. He was getting more upset, and could not rationalize. He was working part time at a country club and was now engaged. He married in July 2007, and was able to have visitation with his son; he wanted to get back into regular counseling with a therapist. In September 2007, as problems with his child visitation were resolved, the Veteran was described as "MUCH happier than previous sessions" and he stated that things were "going so much better." A different situation existed in November 2007, when the Veteran reported sadness and frustration over a family court decision denying further visitation with his sons. Additional problems were described in December 2007, as the Veteran complained that his wife was working a lot, a deal for a new house had fallen through, and the school had rebuffed his attempts to participate in his son's education. He felt he was being treated unfairly, and that people were trying to deceive him in the legal process. He had "snowballing negative thoughts: about himself." He did deny suicidal thoughts. Increased depressive symptoms were noted; to combat this, the Veteran was urged to be more involved in activities. He stated that he had "solicited his boss for additional hours through the holidays." A VA psychiatric examination was conducted in May 2008. The Veteran reported that since his last examination, he had taken a part time job at a golf course, but he had problems with alertness and emotional stability, and last worked in November 2007. He also reported that he had remarried in 2007; he met his new wife on the internet. The Veteran reported continued depression and frustration related to his child custody and visitation issues. He worries about his younger son's academic progress and mental health. Records reflected that the Veteran continued to be treated with medications and counseling at VA facilities. On interview, the Veteran was clean and well groomed. He had gained weight, which was attributed to medications. He was sullen but cooperative. Affect was blunted and sad, and mood appeared depressed. The Veteran stated that as he became more depressed, PTSD symptoms increased. He thinks about his Gulf War experiences daily. He has daily intrusive thoughts and dreams; some of these are related to the military and some to his child custody case. He sleeps about four hours a night; the Veteran appeared tired at the examination. Thought processes were normal, but slowed. He complained of poor motivation levels. He worried a lot, often about his children. The Veteran reported that intrusive memories of the Persian Gulf seem to increase in intensity and frequency when he was worried, contributing to "marked anxiety." He had experienced some panic episodes. Although the Veteran stated that he wished to interact with others more, he was socially withdrawn. He feared losing his temper. He endorsed suicidal thoughts without plan or intent over the past couple of years. The examiner opined that there was a relationship between the Veteran's PTSD and depression. As depression worsened, so did PTSD. The doctor felt the Veteran was, overall, worse than at the May 2006 examination. A GAF score of 49 was assigned in consideration of PTSD and depression; PTSD alone merited a GAF of 50. The examiner stated that the Veteran was "likely to experience significant difficulty managing the consistency and emotional stability demands of employment...due to his problems with PTSD and depression." He had a "poor" capacity to manage additional stress from work. VA treatment records from December 2007 to October 2008 reveal continued complaints of depression and ongoing treatment. In February 2008, the Veteran's medications were again adjusted to better control mood and anxiety. He described a series of personal stressor events in his life, revolving around his marriage and child custody issues. The Veteran described episodes of extreme anxiety, which the provider stated resembled panic attacks. Affect was appropriate, and mood was currently euthymic; at time he was more depressed. He denied suicidal ideation. There were no abnormalities of speech or thought processes. Interestingly, the doctor seeing the Veteran for this appointment listed as diagnoses depression NOS, generalized anxiety disorder, and rule out panic disorder; PTSD was not listed. A social worker seeing the Veteran the same day did list PTSD as the sole diagnosis. She saw the Veteran for counseling in connection with increased depressive symptoms associated with ongoing child custody problems. He dreamed about his son, and in these dreams he was in military uniform. He slept during the day while his wife worked. Two weeks later, the Veteran reported acute anxiety symptoms and frustration over his visitation with his son. He indicated that he was having vivid memories of the Gulf War and his service as a police officer. His attending physician stated at an April 2008 mental health evaluation that the Veteran was "doing fair" and had "no complaints or problems." Speech and thought content were normal; he denied suicidal ideation. Mood was "okay" and affect was appropriate and showed a full range. Subsequent treatment notes involve a variety of medical problems, but do not reflect further mental health treatment or complaints. Evaluation of PTSD In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as here, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the RO has assigned staged ratings; both periods are currently before the Board on appeal. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran's currently diagnosed disability is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411, for PTSD. The specific criteria are contained in a general rating formula for mental disorders. Under the provisions of the general formula, a 50 percent rating is warranted when the psychiatric disability is productive of 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating is for application when the psychiatric disability results in: 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); and inability to establish and maintain effective relationships. Id. 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, is rated 100 percent disabling. Id. The Board finds that the evidence of records does not warrant assignment of an evaluation in excess of 50 percent for PTSD. The record reflects that the Veteran is currently diagnosed with two distinct psychiatric disabilities, depression and PTSD. While doctors agree that there is a synergy between the symptomatolgy of each, meaning that as the Veteran's depression increases, he experiences additional PTSD symptoms, only PTSD is currently service connected. The depression is a described as a situational reaction to the failure of his marriage and the resulting conflict over child custody and visitation. The overwhelming majority of psychiatric treatment and complaints reflected in VA records are associated with the Veteran's family situation, and not with PTSD. Nightmares and intrusive thoughts of the Gulf War, when they are mentioned, are ancillary to the stresses and fears regarding visitation with his children. They do increase in times of stress, but the large majority of the Veteran's functional impairment and symptoms is unrelated to PTSD. There is no showing of PTSD associated panic or depression consistent enough to interfere with daily functioning, poor hygiene, disorientation, or confusion which would justify assignment of an evaluation in excess of 50 percent. The Veteran has even been able to meet and marry a new woman. While records do reflect that around 2001 the Veteran, without medication, tended toward angry, irrational, and violent behaviors, current records show such to be well controlled on the current treatment regimen. The Board notes that the VA examiner, who saw the Veteran in May 2006 and May 2008, indicates a worsening degree of depression and overall functioning, and he appears to indicate a worsening of PTSD symptoms as well. The Board does not fully credit the symptoms and findings as shown on VA examination. The examiner himself noted that the reports on examination seemed worse, even at odds, with the disability picture and complaints during regular treatment. For example, the Veteran endorses suicidal ideation on examination, but repeatedly denies such to treating doctors, nurses, and counselors. Also, in April 2008, one month prior to a VA examination, the Veteran reported no symptoms or complaints. At the examination the following month, he complained of depression, nightmares, intrusive thoughts, anger and temper difficulty, and social withdrawal, in addition to recurrent suicidal ideation. The inconsistent complaints from treatment to compensation examination weigh against the Veteran's claim. In sum, a schedular evaluation in excess of 50 percent is not warranted in this case, as the credible evidence of record establishes that PTSD symptomatology has not resulted in greater impairment than reduced reliability and productivity. While the Veteran does exhibit impairment due to psychiatric problems, doctors relate these problems to nonservice connected depression. TDIU For similar reasons, the Board finds that entitlement to a total disability evaluation based on individual unemployability is not shown. The evidence of record does not establish that the Veteran is unable to obtain or retain substantially gainful employment due to his service connected disability. 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. In this case, the Veteran contends that he is unable to maintain substantially gainful employment due to PTSD, the sole service connected disability. PTSD is rated 50 percent disabling. Basic schedular eligibility requirements for TDIU are met where a veteran has a single service connected disability rated 60 percent disabling, or a combined evaluation of 70 percent or more, with at least one disability rated 40 percent or more. 38 C.F.R. § 4.16(a). Where, as here, a veteran does not meet the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), entitlement may still be granted. If such a Veteran is found to be unemployable due to service connected disabilities, the case must be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration. The threshold question, therefore, is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Entitlement to TDIU is shown where a veteran cannot obtain or retain substantially gainful employment due to service connected disabilities. "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 v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), "Marginal employment shall not be considered substantially gainful employment." In Moore, 1 Vet. App. at 359, the Court of Appeals for Veterans Claims (Court) further discussed the meaning of "substantially gainful employment." The Court noted the following standard announced by the United States Court of Appeals for the Federal Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. 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. Initially, the Board notes that the Veteran has failed, despite repeated and pointed requests from VA, to supply a properly completed VA Form 21-8940. He has consistently omitted employment information, and this has restricted VA's ability to contact past employers and obtain evidence and information regarding his employability. He has also made inconsistent statements of his employment history to SSA and VA. The evidence of record shows that the Veteran has obtained a series of jobs, which he alleges were part time, and were lost due to psychiatric problems. Statements to doctors have also indicated, however, that the employment was seasonal, or was lost due to legal problems. In light of evidence of record showing inconsistencies in the Veteran's reports of symptoms and employment history, the Board must find less credible those statements to doctors indicating an inability to maintain employment due to PTSD (and resulting medical opinions on employability), and finds more credible the explanations reflected in the file that employment status changed with seasons, physical relocations, or due to continued legal problems. The Board cannot find, based on the relevant evidence of record, that the Veteran is unemployable or engaged only in marginal employment. Entitlement to TDIU may be denied based on this finding that the Veteran is not shown to be unemployable Even if the Board were to determine that the employment evidence of record was sufficient to support a finding of unemployability, entitlement must still be denied because the evidence of record does not relate such to PTSD. Instead, nonservice connected depression is the cause of any unemployability. As is discussed above, the Veteran's current psychiatric complaints focus on his depression and frustration in dealing with a child custody dispute. His moods an attitudes wax and wane markedly in relation to his ability to visit his children and take part in their lives. It is this emotional instability and inconsistency which is cited by doctors as rendering the Veteran unemployable. Although at rare, widely spaced times the Veteran states that his PTSD symptoms, including intrusive thoughts and nightmares, are aggravated by the depression, these symptoms are not shown to impact his occupational functioning to the point of rendering him incapable of obtaining or retaining employment. His fatigue from sleep disturbances, even discounting that such is mainly caused by depressive symptoms, is not cited as a major impairing factor. The Board notes that the Veteran complains of fatigue and mental impairment in the context of medication side effects, but no doctor reports such effects. Weight gain is noted, but medications are otherwise noted to be helping without significant unwanted results. In sum, entitlement to TDIU is denied on dual grounds. First, the evidence of record does not establish that the Veteran is unable to obtain or retain substantially gainful employment, in light of the evidence of record that he has been able to obtain a series of jobs and has then lost such for reasons unrelated to disability. Second, even if he Veteran were found unemployable, it is not shown to be due to service connected disability alone. Nonservice connected depression plays a major role in the Veteran's functional impairment. ORDER An evaluation in excess of 50 percent for PTSD is denied. Entitlement to TDIU is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs