Citation Nr: 1123791 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 06-25 210A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 70 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU), for the period prior to July 26, 2006. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to December 1966. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2005 decision of the RO that granted service connection for PTSD evaluated as 30 percent disabling effective November 21, 2002. The Veteran timely appealed for a higher initial disability rating. In July 2006, the RO increased the disability evaluation to 50 percent for PTSD, effective November 21, 2002. In July 2008, the RO increased the disability evaluation to 70 percent for PTSD, effective June 23, 2008; and granted entitlement to TDIU benefits, also effective June 23, 2008. The Veteran then sought an earlier effective date for the award of the 70 percent rating for PTSD, and for the award of TDIU benefits. In a September 2008 rating decision, the RO denied earlier effective dates for the 70 percent rating for PTSD and for the award of TDIU benefits. In December 2008, the Veteran filed a notice of disagreement, contending that earlier effective dates for both the 70 percent rating for PTSD and for TDIU benefits was warranted-"as early as July 26, 2006." Subsequently, in October 2009, the RO assigned an effective date of July 26, 2006, for the 70 percent disability rating for PTSD and for the award of TDIU benefits. This was considered a complete grant of the Veteran's claims for earlier effective dates-namely, the date requested. The Veteran failed to appear for a hearing before a Veterans Law Judge at the RO that was scheduled for March 26, 2010. In a June 2010 decision, the Board denied an initial disability evaluation in excess of 50 percent for PTSD, for the period from November 21, 2002, to July 25, 2006; and denied a disability evaluation in excess of 70 percent for PTSD, for the period from July 26, 2006. The Veteran appealed the June 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2011 Joint Motion for Partial Remand, the parties moved to vacate the Board decision to the extent that it denied a rating in excess of 70 percent for PTSD, and did not address the matter of entitlement to a TDIU for the period prior to July 26, 2006. The Court granted the motion. Thereafter, the case was returned to the Board. In essence, the Court has ruled that the October 2009 rating decision that assigned a TDIU effective July 26, 2006, is not final, and the Board may adjudicate this matter de novo. The Board also notes that the Veteran, who performed service in the Republic of Vietnam, is shown by the medical evidence to suffer from diabetes mellitus and from ischemic heart disease. The issues of service connection for ischemic heart disease and for diabetes mellitus have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ) on a presumptive basis. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. For the period from November 21, 2002, to January 12, 2006, the Veteran's PTSD had been manifested primarily by chronic sleep impairment, intrusive thoughts, disturbances of motivation and mood, and social isolation; these symptoms reflect no more than occupational and social impairment with reduced reliability and productivity. 2. For the period from January 13, 2006, the Veteran's PTSD has been manifested by moderately severe impairment in social and occupational functioning, irritability, near-continuous anxiety, and poor concentration; gross impairment in thought processes, persistent delusions or hallucinations, grossly inappropriate behavior, or persistent danger of hurting self or others have not been demonstrated. 3. The Veteran has the following service-connected disability: PTSD, rated as 50 percent disabling from November 21, 2002, to January 12, 2006; and rated as 70 percent disabling from January 13, 2006. 4. The Veteran has work experience as a buyer/seller and was last self-employed in 2004. 5. For the period prior to January 13, 2006, the Veteran's service-connected PTSD did not prevent him from securing or following substantially gainful employment. 6. For the period from January 13, 2006, the Veteran's service-connected PTSD prevented him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. For the period from November 21, 2002, to January 12, 2006, the criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2010). 2. For the period from January 13, 2006, the criteria for a 70 percent disability rating for PTSD are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2010). 3. The criteria for entitlement to TDIU, for the period prior to January 13, 2006, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2010). 4. The criteria for entitlement to TDIU, for the period from January 13, 2006, are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through February 2005, January 2006, and August 2007 letters, the RO notified the Veteran of elements of service connection, the evidence needed to establish each element, and evidence of increased disability. These documents served to provide notice of the information and evidence needed to substantiate the claims. VA's letter notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In the August 2007 letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran has appealed for a higher initial disability rating assigned following the grant of service connection. Hence, the Board has characterized the issue in accordance with the decision in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (appeals from original awards are not to be construed as claims for increased ratings), which requires consideration of the evidence since the effective date of the grant of service connection. As Fenderson held that a claim for an initial disability rating is distinct from a claim for increased rating, the requirements of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), are not applicable to the present claim. Defects as to the timeliness of the statutory and regulatory notice are rendered moot because each of the Veteran's claims on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claims on appeal, reports of which are of record and are adequate for rating purposes. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). II. PTSD Evaluation Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances 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, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2010). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2010). Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson, 12 Vet. App. at 126. Service connection has been established for PTSD, effective November 21, 2002. The RO has evaluated the service-connected PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411, as initially 50 percent disabling; and as 70 percent disabling, effective July 26, 2006. The actual criteria for rating psychiatric disabilities other than eating disorders are contained in a General Rating Formula. A 50 percent rating is assigned when there is 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. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of PTSD. Layno v. Brown, 6. Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment. His statements have been consistent with the medical evidence of record, and are probative for resolving the matters on appeal. Records reflect that the Veteran regularly attended group therapy sessions for several years. During a VA psychiatric evaluation in February 2002, the Veteran reported having a severe depression one year earlier, and that medications have helped him with depression and irritability. The Veteran still reported nightmares and intrusive thoughts of combat, with some flashbacks. He was hyper alert, avoided crowds, and had difficulty maintaining long-term relationships. The Veteran also reported difficulty with jobs and businesses due to authority conflict. Examination revealed that the Veteran was oriented to person, place, and time; and had normal behaviors, speech, flow of thoughts, memory, concentration, perceptions, affect, and judgment. His mood was anxious. The assessment was PTSD. A global assessment of functioning (GAF) score of 60 was assigned. VA progress notes, dated in December 2003, reflect that the Veteran's medications were helping with depression, anxiety, and insomnia. The Veteran reported intrusive thoughts, and that he found the weekly group sessions helpful. He denied suicidal or homicidal ideation. During a January 2005 VA examination, the Veteran's current symptoms included intrusive thoughts that occurred daily; nightmares occurring 4 to 5 times weekly; flashbacks triggered by sounds and smells; severe anxiety; avoidance of people, places, and activities regarding wartime experiences; a sense of detachment from people; difficulty sleeping; hypervigilance; and outbursts of anger and irritability. The Veteran also reported having a moderate-to-severe level of disturbance with regard to both occupational and social dysfunction. He reported having had five marriages and a divorce pending, and not being able to maintain steady employment longer than 3-to-6 months. On examination, the Veteran did not demonstrate any impairment in thought process or communication, delusions, hallucinations, inappropriate behavior, or suicidal or homicidal thinking. He appeared capable of maintaining activities of daily living; and did not demonstrate any memory loss, ritualistic behavior, or panic attacks. The Veteran endorsed persistent symptoms of increased arousal as evidenced by sleep disturbance, irritability, startle response, and hypervigilance. He also endorsed persistent re-experience of trauma with recurrent dreams, thoughts, and physiological reactivity; and persistent avoidant behavior of thoughts, movies, activities, and crowds. A GAF score of 50 was assigned. A VA social worker in June 2005 noted that the Veteran was undergoing group therapy sessions for those with chronic mental illness, and for those with profound disturbance of mood and thought. During a July 2005 VA examination, the Veteran reported that he last worked in November 2004 in a managerial position for laborers for four months, but had a conflict with another manager and left the job. On examination, the Veteran was alert and oriented times four. He was well dressed and groomed, and without psychomotor agitation or retardation. He had good eye contact. The rate, tone, and volume of his speech were normal. His thought process was linear, logical, and goal-directed. The Veteran denied suicidal or homicidal ideation, intent, or plans. No delusions were expressed. Recent and remote memory, and cognition were intact. The Veteran's insight and judgment were fair. The examiner opined that the Veteran experienced mild-to-moderate social and occupational dysfunction due to PTSD. A GAF score of 58 was assigned. Social Security records reflect that the Veteran underwent a psychological evaluation in July 2005. The examiner opined that the Veteran appeared to be adequately treated with medication and counseling, and opined that the Veteran was not at risk of suffering decompensation in a work-like setting. An August 2005 psychiatric review by the Social Security Administration reflects that the Veteran demonstrated the mental ability "to complete simple tasks reliably[,] but would require a work environment of low social demand given some ongoing anxiety." VA progress notes, dated January 13, 2006, reveal that the Veteran's PTSD symptoms markedly worsened. The Veteran was unable to deal with people and work due to symptoms of poor concentration, anxiety, and irritability. He denied suicidal or homicidal ideations. On July 26, 2006, a VA staff psychiatrist noted the Veteran's increasing symptoms of anxiety, irritability, intrusive thoughts, panic attacks, interrupted sleep, and nightmares; and increased the Veteran's medications. The staff psychiatrist also noted the Veteran's poor concentration, and opined that the Veteran was totally and permanently disabled and unemployable. The report of a May 2008 VA examination reflects persistent symptoms of recurrent and intrusive distressing thoughts and dreams, markedly diminished interest or participation in significant activities, feeling of detachment or estrangement from others, difficulty falling or staying asleep, difficulty concentrating, hypervigilance, and exaggerated startle response. The examiner indicated that the Veteran's claims file was not available to review, and that the Veteran attributed his unemployment to a heart condition-not to PTSD. The examiner found that the Veteran's PTSD resulted in significant social impairment. A GAF score of 50 was assigned. In June 2008, a VA staff psychiatrist again opined that the Veteran was totally and permanently disabled, and unemployable due to PTSD. While the GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" (DSM-IV), the assigned GAF score in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, it must be considered in light of the actual symptoms of the Veteran's disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). Based on the evidence of record, the Board finds that a 70 percent disability rating is warranted for PTSD from January 13, 2006-i.e., six months earlier than the currently assigned 70 percent rating; and, accordingly, has adjusted the dates of each applicable period in this appeal, as shown below. The evidence reflects occupational and social impairment with deficiencies in most areas-including work, family relationships, thinking or mood. In reaching this decision, the Board has resolved any doubt in favor of the Veteran. For the Period from November 21, 2002, through January 12, 2006 For the applicable period, the Veteran's PTSD had been manifested, primarily, by chronic sleep impairment, intrusive thoughts, disturbances of motivation and mood, and social isolation. While these symptoms seemed to occur frequently, they are, nonetheless, reflective of overall moderately severe social impairment, although generally functioning satisfactorily with routine behavior and self-care. Such level of impairment warrants no more than a 50 percent disability rating. While examiners have noted irritability, this factor, alone, does not provide a sufficient basis for assignment of a 70 percent, or higher, disability rating during the applicable period. Significantly, the Veteran had not been found to have such symptoms as obsessional rituals, near-continuous panic or depression, illogical or obscure speech, spatial disorientation, neglect of personal appearance and hygiene, or other symptom combinations reflective of a 70 percent, or higher, disability rating. While symptoms of decreases in work efficiency and intermittent periods of inability to perform occupational tasks are associated generally with a 30 percent disability rating, in this case, the overall record nearly approximates the criteria for a 50 percent disability rating for PTSD. The evidence does not reflect that the Veteran's PTSD during the applicable period caused total impairment in social and occupational functioning. Although Social Security records in August 2005 noted the Veteran's ongoing anxiety that required a work environment of low social demand, symptoms such as gross impairment in thought processes or communication, or persistent delusions or hallucinations were not demonstrated. The GAF score of 50 assigned by the examiner in January 2005 reflects serious symptoms; and the GAF score range of 58 to 60 assigned by the examiners in February 2002 and July 2005 reflect moderate symptoms. Given that the Veteran's medications appeared helpful and the Veteran participated in counseling and was able to work, the Board finds that the overall evidence warrants no more than the currently assigned 50 percent disability rating for the applicable period. As such, a disability rating in excess of 50 percent, or for that matter in excess of 70 percent, for the applicable period is not warranted. For the Period from January 13, 2006 For the applicable period, the Veteran's PTSD has been manifested, primarily, by moderately severe impairment in social and occupational functioning. The GAF score of 50 assigned by the most recent examiner in May 2008 reflects serious symptoms. Given the clinical findings of markedly worsened irritability, near-continuous anxiety, and poor concentration, and the Veteran's difficulty in dealing with people and work, the Board finds that the evidence more nearly approximates the criteria for a 70 percent disability rating from January 13, 2006. Specifically, on January 13, 2006, a VA physician found that the Veteran's PTSD symptoms markedly worsened, and that the Veteran was unable to deal with people and work. There is no evidence of suicidal or homicidal ideation. Such level of impairment more nearly approximates the criteria for a 70 percent disability rating. The evidence does not reflect that PTSD symptoms alone are of such severity as to warrant a disability rating in excess of 70 percent at any time. Significantly, the Veteran has not been found to have symptoms such as gross impairment in thought processes, persistent delusions or hallucinations, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, and disorientation to time or place-all symptoms which would warrant a 100 percent disability rating. The evidence does not reflect that the Veteran's PTSD has caused total impairment at any time in social and occupational functioning. The Board finds that the overall evidence warrants no more than a 70 percent disability rating for PTSD, from January 13, 2006. Extraschedular Consideration, and Conclusion The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran provided statements indicating that the symptomatology associated with PTSD is severe. The Board acknowledges the Veteran's contentions; however, the Board finds the severity of the Veteran's service-connected PTSD is fully contemplated by the rating criteria. There is nothing exceptional about the Veteran's service-connected disability. The degree of disability exhibited is contemplated by the rating schedule. Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration. 38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008). Additionally, the Veteran is not currently working, and there is no evidence of the need for frequent hospitalization due to PTSD. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the Board finds that staged ratings, pursuant to Fenderson, are applicable. The weight of the evidence is against the grant of an initial disability rating in excess of 50 percent for PTSD, for the period from November 21, 2002, through January 12, 2006; and in favor of a 70 percent, but no higher, disability rating for PTSD from January 13, 2006. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2010). III. TDIU Benefits In essence, the parties to the joint motion have agreed that the Board must determine whether an informal claim for TDIU has been raised by the evidence of record; and if so, must adjudicate the claim for the entire appellate period. Here, the Board finds that the Veteran raised an informal TDIU claim in January 2006, when he filed a notice of disagreement with the initially assigned rating for PTSD, effective November 21, 2002. During the appellate period, the Veteran submitted evidence of medical disability and unemployability. See 38 C.F.R. § 3.155(a). The RO has awarded TDIU benefits for a portion of the appellate period, beginning July 26, 2006. Hence, the Board must consider the Veteran's entitlement to TDIU benefits for the appellate period prior to July 25, 2006. Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a). In this case, the Veteran has completed three years of high school education, and has had no additional education and training. The Veteran reportedly was self-employed as a buyer/seller, working 50 hours per week from January 2001 to March 2004. He reportedly lost 1.5 years of work time during this period from illness. His highest gross earnings per month were $2,000. He reportedly became too disabled to work in 2004. Service connection is currently in effect solely for PTSD, rated as 50 percent disabling for the period from November 21, 2002, to January 12, 2006; and as 70 percent disabling from January 13, 2006, as shown above. In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may be assigned nonetheless-on an extra-schedular basis-upon a showing that he is unable to obtain or retain substantially gainful employment. 38 C.F.R. §§ 3.321(b)(2), 4.16(b). The remaining question, then, is whether the Veteran's service-connected disability renders him unemployable. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet App. at 363. In this case, the overall evidence reflects that the Veteran's service-connected PTSD, in and of itself, currently prevents employability from January 13, 2006. Of note is a January 13, 2006 progress note by a VA psychiatrist, indicating that the Veteran was unable to deal with people and work, and assigning a GAF score of 45. Since then, the Board finds that the evidence has been in relative equipoise on the question of whether the Veteran's service-connected PTSD precludes substantially gainful employment. Resolving doubt in the Veteran's favor, TDIU benefits are awarded for the period beginning January 13, 2006. 38 U.S.C.A. § 5107(b). Prior to January 13, 2006, however, the evidence shows that TDIU benefits are not warranted during the appellate period. The Veteran reportedly was working in 2004. Records received from the Social Security Administration reflect that the Veteran's disability began in November 2004, and that his primary diagnosis was an anxiety-related disorder. Hyperlipidemia was also shown as a secondary diagnosis. In February 2008, the RO requested that the Veteran provide the amount of time lost from work during his last 12 months of self-employment, and the amount of his earnings during his last 12 months of self-employment. The Veteran neither provided the information, nor provided any response to the RO's request. There is no indication in the objective record that the Veteran's last 12 months of self-employment were other than gainful in nature. During a January 2005 VA examination, the Veteran reported that he was not able to maintain steady employment; and that he typically was employed from three to six months as a laborer. The examiner opined that the Veteran remained psychiatrically employable at the time, with likely allowances for his current symptoms. There are records for group therapy that address symptoms of the group, but they do not ordinarily reflect the Veteran's particular symptoms and are of limited probative value. An August 2005 psychiatric review by the Social Security Administration reflects that the Veteran demonstrated the mental ability "to complete simple tasks reliably[,] but would require a work environment of low social demand given some ongoing anxiety." This evidence is insufficient to show entitlement to a TDIU. It does demonstrate that psychiatric disability did affect his occupational functioning. However, this "snapshot" evidence is less probative than the VA examination report from that same time period. The Board finds the July 2005 VA examiner's opinion that the Veteran was employable at the time to be more probative. The July 2005 VA examiner reviewed the Veteran's computerized record, and discussed the Veteran's social and psychiatric history. A mental status examination was conducted, and the July 2005 VA examiner's report was more complete than the VA social worker's observations or psychiatric review by the Social Security Administration. The July 2005 VA examiner opined that the Veteran experienced mild-to-moderate social and occupational dysfunction due to PTSD. A GAF score of 58 was assigned. The January 13, 2006 VA psychiatrist's determination that the Veteran was unable to deal with people and work reflects severe impairment in occupational functioning, and does warrant entitlement to a TDIU. The overall record does not demonstrate that the Veteran's service-connected PTSD, in and of itself, was of such severity as to preclude the Veteran's participation in all forms of substantially gainful employment, prior to January 13, 2006. Based on the foregoing, the Board finds that a TDIU under the provisions of 38 C.F.R. § 4.16 is not warranted. (CONTINUED ON NEXT PAGE) ORDER For the period from November 21, 2002, to January 12, 2006, an initial disability evaluation in excess of 50 percent for PTSD is denied. A 70 percent disability rating for PTSD, for the period from January 13, 2006, is allowed, subject to the pertinent legal authority governing the payment of monetary awards. Entitlement to TDIU is denied, for the period prior to January 13, 2006. Entitlement to TDIU for the period from January 13, 2006 is allowed, subject to the regulations governing the award of monetary benefits. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs