Citation Nr: 1123370 Decision Date: 06/20/11 Archive Date: 06/28/11 DOCKET NO. 04-16 390A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial evaluation in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than November 1, 2000 for the award of a total disability rating for based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Kenneth A. Carpenter, Esq. ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to April 1970. This case comes before the Board of Veterans' Appeals (the Board) on appeal from January 2001 and May 2002 rating decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. On December 23, 1998, the Veteran filed a claim of entitlement to service connection for PTSD. In a January 2001 rating decision, the RO granted service connection for PTSD and assigned a 30 percent rating, effective December 23, 1998. In June 2001 the Veteran disagreed with the assigned disability rating. The Veteran also filed a claim of entitlement to TDIU. In a May 2002 rating decision, the RO increased the rating for service-connected PTSD to 70 percent, effective December 23, 1998; and awarded TDIU, effective November 1, 2000. In April 2003, the Veteran continued his disagreement with the 70 percent rating for service-connected PTSD, as well as with the November 1, 2000 effective date for the award of TDIU. In January 2006, the Board denied the Veteran's claim for an effective date earlier than November 1, 2000 for the award of TDIU; and remanded the issue of entitlement to an initial evaluation in excess of 70 percent for service-connected PTSD to the RO for preparation of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran appealed the January 2006 Board decision to the United States Court of Appeals for Veterans Claims (Court). In May 2009, the Court rendered a decision that vacated the decision on the TDIU earlier effective date claim and remanded the case to the Board. The Court stated, in essence, the Board erred in its January 2006 decision because it did not remand the effective date issue along with the initial rating claim. Meanwhile in April 2006 the RO provided the Veteran with an SOC concerning his claim for an initial rating in excess of 70 percent for the service-connected PTSD, and the Veteran perfected an appeal as to that issue in June 2006. That issue was returned to the Board and was denied in a March 16, 2009 Board decision. Due to the May 2009 Court decision, in September 2009 the Board vacated its March 2009 decision which denied an increased rating for PTSD. In January 2010, the appeal was remanded to the RO for further adjudication, and it now returns to the Board for appellate review. FINDINGS OF FACT 1. Service-connected PTSD at its most severe is manifested by occupational and social impairment due to isolationist behavior, irritability, hostility, impaired sleep, suicidal thoughts, panic attacks, olfactory hallucinations, and obsessive and ritualistic behavior, and a Global Assessment of Functioning (GAF) score ranging from 40 to 50; total occupational and social impairment is not shown. 2. The Veteran was unable to maintain substantially gainful employment due solely to service-connected disability, effective December 23, 1998; service connection was not in effect for PTSD prior thereto. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for service-connected PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). 2. The criteria for an effective date of December 23, 1998, but no earlier, for the grant of a TDIU rating have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Stegall Considerations The Board observes that this case was remanded by the Board in January 2010. The Court has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). In view of the Court's decision in Rice v. Shinseki, 22 Vet. App. 447 (2009), the appeal was remanded to afford the Veteran all necessary due process by allowing him additional time to submit evidence and affording him another adjudication of the claims by the AOJ. A review of the post-remand record shows that a March 2010 letter asked that the Veteran any additional argument and evidence and that the Veteran responded via his attorney. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the January 2010 remand, and that the Board may now proceed with adjudication of the claims. II. VA's Duties to Notify and Assist As the Board's decision herein to grant the claim for an effective date prior to November 1, 2000 for TDIU is a full grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002)) and the implementing regulations as to that claim. With respect to the initial rating claim, the VCAA imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Court of Appeals for Veterans Claims (Court), in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable AOJ decision on the claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board observes that since the VCAA was not enacted until after the initial rating decision, there was no VCAA specific communication to the Veteran prior to the initial unfavorable decision. The Veteran was first provided with VCAA notice relevant to his initial rating claim in February 2006, and he was also sent notice with regard to the assignment of disability ratings and effective dates in March 2006 and September 2006. The Board notes that initial rating claims are generally considered to be "downstream" issues from the original grant of benefits. VA's General Counsel issued an advisory opinion holding that separate notice of VA's duty to assist the Veteran and of his concomitant responsibilities in the development of his claim involving such downstream issues is not required when the Veteran was provided adequate VCAA notice following receipt of the original claim. See VAOPGCPREC 8-2003. Further, where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. See Goodwin v. Peake, 22 Vet. App. 128 (2008), citing Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). In this case, the Veteran has not alleged that he has suffered any prejudice as to the lack of pre-adjudicatory notice as to disability ratings and effective dates. Additionally, a statement of the case (SOC) or supplemental statement of the case (SSOC) constitutes a "readjudication decision" that complies with all due process requirements if preceded by adequate VCAA notice. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). As a matter of law, providing the Veteran with VCAA-compliant notice prior to a readjudication "cures" any timing problem resulting from any deficiency in notice content or the lack of notice prior to an initial adjudication. See id., citing Mayfield v. Nicholson, 444 F.3d 1328, 1328 (Fed. Cir. 2006). In this case, subsequent to the notice as the initial rating claim and disability ratings and effective dates, the Veteran's claim was readjudicated multiple times. Thus, the Board finds that there has been no prejudice to the Veteran, and any defect of notice has not affected the fairness of the adjudication on the initial rating or effective date issues. See Overton v. Nicholson, 20 Vet. App. 427 (2006); Mayfield v. Nicholson, rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine), on remand, 20 Vet. App. 537 (2006) (discussing Board's ability to consider "harmless error"); see also Dingess/Hartman; cf. Locklear v. Nicholson, 20 Vet. App. 410, 415-16 (2006) (duty to notify does not extend in perpetuity or impose duty on VA to provide notice on receipt of every piece of evidence or information). VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination. The Veteran's service treatment records, VA medical records, private medical records, Social Security Administration (SSA) records, and the reports of June 1999, December 2000, April 2002, and May 2010 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of his claims. The Veteran has not identified any additional, relevant records that VA needs to obtain for an equitable disposition of his claim. With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, each examiner reviewed the claims file, documented the Veteran's subjective complaints and medical history, and evaluated the Veteran. Thereafter, in the reports, they provided information sufficient in detail and relevance to the rating criteria for PTSD to allow for determination of the appropriate disability rating. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2010). 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. § 4.1. The basis of disability evaluation 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. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. As such, the Board has considered all evidence of record in evaluating the Veteran's service-connected disability. Also, in Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, in accordance with Fenderson, the Board has considered the propriety of staged ratings in evaluating the Veteran's service-connected PTSD. 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service-connected PTSD is currently evaluated as 70 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2009). The Veteran contends that his symptoms warrant the assignment of a higher rating. The regulations establish a General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The criteria for a 70 percent rating are: 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. The criteria for a 100 percent rating are: 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. During the appeal period, the Veteran was afforded four VA examinations, in June 1999, December 2000, April 2002, and May 2010. The Board observes that the June 1999 examination report provides sparse details regarding the Veteran's symptoms, but that those discussed were consistent with the symptoms reported in December 2000 and April 2002. The GAF score assigned was 50. Due to this fact, the Board discusses in detail only those symptoms described in December 2000, April 2002, and May 2010. No symptoms documented in June 1999 or surrounding treatment records reflect a severity of disability not described in the latter VA examination reports. In December 2000, the Veteran reported sleep impairment and irritability. He described his family as close with good harmony among immediate members, as well as good peer relationships. However in April 2002, subjective symptoms also included hostility, and moodiness. Further, the Veteran indicated that he preferred being left alone, being suspicious of people, having a high level of anger, and thinking of suicide. At both examinations, he denied panic attacks, obsessive rituals, delusions, and hallucinations. The mental status examination revealed orientation to person, place, and time and intact short- and long-term memory. The GAF score assigned in December 2000 was 50 and in April 2002, 40. At the May 2010 examination, the Veteran reported strained family relationships with his spouse, children, and grandchildren. He indicated that he was still in touch with out-of-state relations, but that he visited them only once in a while. The Veteran reported sleep of four to five hours per night. The examiner found him to be irritable and guarded with restricted affect. He was oriented to person, place, and time and had unremarkable thought process and content that was without delusions. However, olfactory hallucinations were documented. The Veteran exhibited insight into his problem and judgment was intact. Nevertheless, he reported being socially isolated and experiencing road rage, as well as obsessive and ritualistic behavior. He described having panic attacks several times per week and having suicidal and homicidal thoughts. His impulse control was stated to be poor. The examiner indicated that the Veteran's symptoms caused slight to severe impairment of his daily activities. The GAF score assigned was 43. The Board observes that the Veteran has been assigned GAF scores ranging from 40-50. A GAF score of 31-40 contemplates some impairment in reality testing or communications (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF score of 41-50 contemplates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or social functioning (e.g., no friends, unable to keep a job). While a GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders, the GAF scores assigned in a case are not dispositive of whether overall improvement has been established; rather, they must be considered in light of the actual symptoms of the Veteran's disorder. See 38 C.F.R. § 4.126(a). The Board also notes that the Veteran suffers not only from PTSD but also from severe major depressive disorder. The Board finds that there is an inadequate basis in the record upon which to dissociate the Veteran's depression symptoms from his PTSD symptoms. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt on any issue be resolved in the Veteran's favor, and that such signs and symptoms be attributed to the service-connected condition). Thus, all psychiatric symptoms reported are considered to be due to the Veteran's service-connected PTSD. After careful consideration of this evidence and affording the Veteran all reasonable doubt, the Board concludes that a rating in excess of 70 percent for service-connected PTSD is not warranted at any time during the appeal period. The record reflects that the Veteran's symptoms of occupational and social impairment due to isolationist behavior, irritability, hostility, impaired sleep, suicidal thoughts, and obsessive and ritualistic behavior fall squarely within the criteria for a 70 percent rating. These symptoms do not more closely approximate a rating in excess of 70 percent. In this regard, the Board observes that the Veteran has not exhibited total occupational and social impairment as exemplified by his ability to maintain some employment until November 2000, subsequent efforts to participate in vocational rehabilitation, and continued, if infrequent, interactions with family. Further, he has not displayed symptoms typical of a higher rating, such as delusions, gross impairment of thought processes such as inability to form complete sentences or respond to questions, inability to maintain personal hygiene, or loss of memory as to his name, family, or occupation. The Board acknowledges that the Veteran reported olfactory hallucinations in May 2010, but such symptom alone does not support a rating in excess of 70 percent. Accordingly, the Board finds that a rating in excess of 70 percent is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, as indicated, the Veteran's PTSD symptoms do not more closely approximate a rating in excess of 70 percent; therefore, the benefit of the doubt doctrine is not applicable in the instant appeal, and his service connection claims must be denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7. Extra-schedular consideration The Board acknowledges that an extraschedular rating is a component of a claim for an increased rating. Barringer v. Peake, 22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). If so, factors for consideration in determining whether referral for an extraschedular rating include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, citing 38 C.F.R. § 3.321(b)(1) (2010). In the present case, the Board finds no evidence that the Veteran's service-connected PTSD presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). His symptoms fall well within the criteria delineated in the rating schedule. Therefore, the Board determines that an extraschedular referral due to the Veteran's lack of employment is not necessary. IV. Effective Date The Veteran contends that his claim for a TDIU rating relates back to his claim for service connection for PTSD, which he filed in December 1998. As discussed, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part and parcel of an initial (increased) rating claim when raised by the record. The Court indicated that in a case where the effective date of a TDIU rating is at issue, the law that applies depends on whether the rating claim is an increased rating claim related to a disability already service-connected or is an initial rating claim associated with the original grant of service connection. The Court noted that when the claim was for service connection, any submissions filed before the end of a one-year period after the RO decision relate back to the original claim. 38 C.F.R. § 3.156(b) (2010); cf. Jennings v. Mansfield, 509 F.3d 1362 (2007) (a claim becomes final and subject to a motion to reopen only after the period for appeal has run, and any interim submissions before finality must be considered by the VA as part of the original claim). Therefore, the Court concluded that the Veteran's claim for a TDIU rating was a submission relevant to the initial rating claim for PTSD and so the date of claim for the TDIU rating was the date of the Veteran's claim for service connection for PTSD. Thus, the regulations that apply in this case are as follows. The effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose, if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). When an award of service connection is granted based upon new and material evidence received after the final disallowance of the Veteran's initial claim and which does not encompass service department records, the effective date of such an award shall be the date of receipt of the Veteran's reopened claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). The Board observes that a total disability evaluation may be assigned where the schedular evaluation is less than total when the disabled person is 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2010). For purposes of calculating the percentage requirements of one 60 percent disability, or one 40 percent disability, the following disabilities will be considered 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. "Substantially gainful employment" is not currently defined in VA regulations. For a veteran to prevail on a claim based on unemployability, the record must reflect some factor which takes the claimant's case outside the norm for such a veteran and not just that the Veteran is unemployed or has difficulty finding employment. Marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a). For purposes of 38 C.F.R. § 4.16(a), marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. However, consideration shall be given in all claims to the nature of the employment and the reasons for termination. Id. 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The record reflects that, as of December 23, 1998, the Veteran was in receipt of a 70 percent rating evaluation for service-connected PTSD, and a noncompensable rating for service-connected malaria. Thus, the Veteran met the threshold criteria for a TDIU rating as of the date service connection was granted for PTSD. Therefore, the claim rests on when the Veteran became unable to obtain or maintain substantially gainful employment and whether that inability was due solely to service-connected PTSD. The Veteran argues that his federal tax returns show that the Veteran, although employed, was apparently taking a significant financial loss in his business. He contends that his employment was not substantially gainful. A TDIU rating was assigned effective November 1, 2000 based on evidence that the Veteran ceased working in October 2000. Prior to October 2000 the Veteran was self-employed as a chiropractor. His 1998 Federal Income Tax Return reflects total income of $30,675 and an adjusted gross income (AGI) of $14,976. His 1999 return shows total income of $31,858 and an AGI of $11, 212. On his 2000 Tax Return, the Veteran reported total income of $32,401, and an AGI of $18,277. A close review of these tax returns and the accompanying forms W-2 reveals that the total income reported each year was that of the Veteran's spouse. The Veteran's gross business income for each year was $17,781 for 1998, $15,562 for 1999, and $9,800 for 2000. His net loss for each year was $16,858, $22,980, and $21,954, respectively. The Veteran, through his attorney, argues that the assessment of whether he was substantially and gainfully employed should be based on his net income, in this case a net loss. The Board sees that the poverty threshold for one person under age 65 in 1998 was $ 8,480. U. S. Census Bureau, http://www.census.gov/hhes/www/poverty/data/threshld/index.html. In 1999, this poverty threshold was $8,667. Id. In 2000, the poverty threshold was $8,959. Id. Thus, the Veteran's earned income exceeded by several thousand dollars the amount generally deemed indicative of marginal employment in 1998 and 1999. See 38 C.F.R. § 4.16(a). However, the Board does not doubt that the Veteran's ability to run his business was significantly compromised due to his service-connected PTSD. In this regard, the Board notes the February 2011 opinion from a VHA psychiatrist who opined that the Veteran's service-connected PTSD was the predominant cause of his occupational difficulties. The psychiatrist also indicated that the Veteran's declining income levels and increasing net loss after 1998 was due to his service-connected PTSD symptoms. He declined to offer an opinion as to whether the Veteran's employment was substantially gainful, indicating that the determination was beyond his expertise. Nevertheless, the Board finds that the Veteran's service-connected PTSD rendered him an unable to obtain or maintain substantially gainful employment as of the date he was granted service connection for PTSD. In this regard, the Board relies on the extensive financial documentation provided by the Veteran demonstrating his inability to maintain a thriving chiropractic practice from the time he filed his claim onward. Further, in spite of his earned income for the years 1998, 1999, and 2000, his overall "income" was a net loss; moreover, even though this figure results from many factors related to running a business, the documents reflect a decrease in gross income nearing 50 percent between January 1, 1999 and December 31, 2000. The Board affords all benefit of the doubt to the Veteran and finds that such a decrease in gross income, prior to taking into account any other factors intrinsic to running a business, reflects an inability to maintain substantially gainful employment. This inability culminated in the Veteran ceasing all employment in October 2000. Moreover, as established, the Veteran's inability to maintain employment is due solely to service-connected disability. Accordingly, an effective date of December 23, 1998, for the assignment of a TDIU rating is granted. The preponderance of the evidence is against an earlier date because service connection was not in effect prior to December 23, 1998, for the disability, PTSD, upon which TDIU is based. ORDER An initial rating in excess of 70 percent for service-connected PTSD is denied. An effective date of December 23, 1998, but no earlier, for a TDIU rating is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs