Citation Nr: 1334114 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 99-20 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) prior to May 2, 2002, to include a total rating based on individual unemployability due to service-connected disability (TDIU). 2. Entitlement to an increased disability rating for the service-connected bladder incontinence, rated as 40 percent disabling prior to December 18, 2009, and rated as 60 percent thereafter. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active service from August 1966 to April 1970. This appeal comes before the Board of Veterans' Appeals (Board) from an August 1998 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection and a 30 percent rating for post-traumatic stress disorder. In August 2001, the RO granted an increased initial rating of 70 percent for PTSD, effective from the date of claim. The appeal continued. The Veteran requested a hearing before a decision review officer (DRO) in connection with the current claim for an increased initial rating for the service-connected PTSD. The hearing was scheduled and subsequently held in May 2001. The Veteran testified at that time and the hearing transcript is of record. The Veteran also requested a Travel Board hearing in January 2000; however, he withdrew his request for this hearing by way of a written statement dated June 2003. See 38 C.F.R. § 20.704(d) (2012). In July 2005 and June 2008, the Board remanded the claim for further development. In October 2008, the RO in Huntington, West Virginia, granted an increased rating of 100 percent for PTSD, effective May 2, 2002. The claim was remanded again in April 2009. The April 2009 Board decision also dismissed a claim for entitlement to a disability rating in excess of 60 percent for the service-connected residuals of a back injury with degenerative disc disease because the Veteran submitted a written request to withdraw that claim. With regard to the PTSD claim, the remands allowed for additional evidentiary development, to include affording the Veteran the opportunity to identify pertinent treatment records in support of the current claim, obtaining outstanding VA treatment records and Social Security Administration (SSA) records, and provided the Veteran an examination. The requested development was completed and the Veteran's claim was denied in a January 2011 Board decision. The Veteran appealed the Board's January 2011 decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). While the claim was pending at the Court, the Veteran, via his representative, and the Secretary of VA (the parties) entered into a Joint Motion for Remand in June 2011. Later that month, the Court granted the Joint Motion and the matter was remanded back to the Board for action consistent with the terms of the joint motion. In May 2012, the Board characterized the issue in light of the Veteran's contentions with respect to TDIU, and remanded the matter to the RO. Meanwhile, in a May 2008 rating decision, the RO confirmed and continued a previously assigned 40 percent rating for the service-connected bladder incontinence. The Veteran thereafter perfected an appeal to the Board with respect to this issue. In his June 2009 VA Form 9, substantive appeal to the Board, the Veteran specifically requested a personal hearing at the RO before a Veterans Law Judge on this issue. In February 2010, the RO issued a rating decision whereby the 40 percent rating was increased to 60 percent for the service-connected bladder incontinence, effective from December 18, 2009. In March 2010 statement, the Veteran indicated that he still desired a travel Board hearing at the RO. In April 2013, the Veteran's representative submitted additional evidence to the Board without agency of original jurisdiction waiver related to the claim for increased rating PTSD, including TDIU. A waiver of AOJ consideration for that information was received at the Board in August 2013. The Veteran indicated that he wished his case to be decided without remand. In light of the determination herein, the issue of entitlement to special monthly compensation at the housebound rate is raised. As this matter has not been adjudicated, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. In July 2012, prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the appeal for entitlement to an increased disability rating for the service-connected bladder incontinence. 2. Prior to May 2, 2002, the social and occupational impairment from the Veteran's PTSD more nearly approximated total social and occupational impairment rather than deficiencies in most areas for the period from January 5, 1998, through April 1998, and from April 1, 1999, to mid-May 2001. At all other time periods prior to May 2, 2002, the Veteran's PTSD more nearly approximated deficiencies in most areas rather than total social and occupational impairment. 3. Prior to May 2, 2002, for the periods other than from January 5, 1998, through April 1998, and from April 1, 1999, to mid-May 2001, the Veteran's PTSD was not sufficient by itself to render him unable to secure or follow a substantially gainful occupation consistent with his education and occupational background. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to an increased disability rating for the service-connected bladder incontinence have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2012). 2. Prior to May 2, 2002, the criteria for a schedular evaluation of 100 percent for PTSD are met only for the periods from January 5, 1998, through April 1998, and from April 1, 1999, to mid-May 2001; the criteria for a rating in excess of 70 percent for PTSD are not met for any other period prior to May 2, 2002. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). 3. Prior to May 2, 2002, the criteria for TDIU from January 5, 1998, through April 1998, and from April 1, 1999, to mid-May 2001 are moot; for all other relevant periods prior to May 2, 2002, the criteria for TDIU are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Disability rating for Service-Connected Bladder Incontinence The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In a July 2012 statement, the Veteran indicated that he desired to withdraw his appeal for an increased disability rating for the service-connected bladder incontinence. Therefore, there remains no allegation of error of fact or law for the Board to address with respect to the claim. Accordingly, the Board does not have jurisdiction to review the appeal with respect to this issue and dismissal is warranted. II. Initial Disability Evaluation in Excess of 70 Percent for Service-Connected PTSD prior to May 2, 2002, to Include TDIU The Veteran seeks entitlement to a rating in excess of 70 percent for PTSD to include entitlement to a TDIU prior to May 2, 2002. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. A. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832 ) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran filed the instant claim January 5, 1998, prior to the enactment of the VCAA. Nevertheless, following the enactment, the VA provided the Veteran a notice letter mailed in August 2005. The letter informed the Veteran how to substantiate his claim for an increased rating and of the allocation of responsibilities between himself and VA. A letter dated in March 2006 informed the Veteran of how ratings and effective dates are assigned. The appeal was remanded to the RO via the AMC, in May 2012. In the remand, the Board noted that the claim for TDIU was raised as part of the claim for an increased rating for the Veteran's service-connected PTSD that was before the Board at that time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Pursuant to the Board's directive, the Veteran was provided complete notice as to how to substantiate his claim for an increased rating on the basis of TDIU by a letter dated in July 2012. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent VA outpatient treatment records, as well as private treatment records has been completed. In addition the Veteran has been afforded appropriate VA examination. Further, the Board finds that there has been substantial compliance with the May 2012 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not identified any outstanding evidence that should be obtained to substantiate his claim. The Board is also unaware of any such evidence. In sum, the Board also is satisfied that the originating agency has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim. B. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability there from are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. A 70 percent rating is warranted for PTSD if it is productive of 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. Use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on a veteran's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). 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. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). A TDIU may be assigned if 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 that 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. 38 C.F.R. §§ 3.340, 3.41, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disability of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16. A claim for a total disability rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is based on 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 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 21-30 is indicated when "Behavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day; no job, home or friends)." A score of 31-40 is indicated when there is, "Some impairment in reality testing or communication (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." A score of 41-50 is assigned where there are, "Serious 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 is appropriate where there are, "Moderate 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 score of 51 to 60 is assigned where there are moderate 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 of co-workers). A score of 61-70 is indicated where there are, "Some mild symptoms (e.g., depressed mood and mild insomnia OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." A score of 71-80 is appropriate when, "If symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social occupational, or school functioning (e.g., temporarily falling behind in schoolwork)." In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial ratings cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. C. Factual Background and Analysis In the joint motion between the parties, it was noted that the January 2011 BVA decision failed to discuss whether apparent intermittent inability to work during the period prior to May 2, 2002, would entitle the Veteran to increased or staged ratings for that period. The Board will thus address the evaluation of PTSD, to include TDIU, for that rating period. The Veteran was afforded a VA psychiatric assessment in December 1997. According to the examiner, the Veteran was unemployed for the past five months, having voluntarily resigned from his last job as a senior vice-president at a sales company. The Veteran stated that he felt "stupid about it [resigning]" and admitted to losing his temper. He denied a history of psychiatric treatment or illness. He reported subjective problems with concentration, poor sleep, and an inability to focus during the past year. He further indicated that he experienced crying spells, brooding, social isolation, nightmares, and oversleeping. The Veteran admitted having a lack of patience, difficulty with authority, feelings of despair, and a past history of heavy drinking (in his 20s). He denied suicidal or homicidal ideation, drug abuse, or any sustained pervasive elation of mood. It was also noted that the Veteran was twice divorced, most recently for the past 15 years and that he had two adult children with whom he had no contact. The Veteran got along well with his brother and his brother's children, but "does not really like [his] sister." A mental status examination revealed the Veteran to well-behaved, but mildly agitated and attempting to be jovial. He was alert and oriented, but had limited concentration. The examiner also described the Veteran's memory as good and noted that he had above-average intellect. However, the examiner noted that the Veteran was unable to hide his desperation. His speech and thought content were normal, but he asked lots of questions and provided explanations for his behavior. He exhibited self-blame and brooding, but was hopeful that things would get better. No evidence of perceptual disturbances, irritability, psychotic features, or suicidal or homicidal ideation was found. The Veteran had limited insight and judgment. HIs GAF score was 50-60. The impression was moderate to severe depression with atypical features of hypersomnia and irritability. According to the examiner, the Veteran's nightmares "could be either part of depressive syndrome or a delayed onset PTSD syndrome." A follow-up VA mental health treatment note dated that same month found the Veteran to be depressed, irritable, and anxious. He had poor compliance with his medication regimen and intermittently continued to use alcohol. It was also noted that the Veteran continued to have poor concentration, avoidance of social relationships, easy irritability, poor sleep, low energy, and low mood. A mental status examination revealed the Veteran to be controlling and irritable with a depressed mood. No evidence of suicidal or homicidal ideation or psychotic features was found. The examiner encouraged the Veteran to take his medication as prescribed. As noted above, the Veteran filed his original service connection claim for PTSD on January 5, 1998. He reported subjective complaints of "painful memories and frightful nightmares" at that time. The Veteran requested a VA examination in connection with his claim. The Veteran was afforded a VA mental health evaluation in January 1998. He reported once or twice weekly combat-related nightmares, night sweats, feelings of depression, anxiety, and hypervigilance, intrusive recollections, emotional distance/detachment, increased irritability, poor concentration and short-term memory, and an exaggerated startle response. The Veteran denied suicidal or homicidal ideation. On mental status examination, the examiner described the Veteran as mildly depressed, anxious, and prone to gallows-type humor, but talkative, informative, and cooperative. The Veteran's thoughts were coherent and goal-directed. The Veteran stated that until two years ago, he had been a successful businessman, working as a senior vice-president and earning a six-figure income. According to the examiner, the results of the Veteran's psychological testing were congruent with someone who experienced "significant" material and occupational losses, as well as acute psychological and emotional distress resulting from the impact of PTSD symptomatology. The Veteran's GAF score was 48. The impression was chronic, delayed-onset PTSD and recurrent, severe major depressive disorder (MDD) without psychotic features. The Veteran returned to a VA mental health clinic in April 1998 for individual treatment. According to the examiner, the Veteran presented as moderately depressed and much less talkative than usual. However, the Veteran appeared to be motivated to be present. The Veteran stated that he had a "bad week," but had difficulty articulating why this was the case. The Veteran stated that he experienced "much rumination" about how "good" things had been for him prior to the full-blown PTSD symptomatology he began experiencing one to two years ago. In a follow-up treatment note dated May 1998, the Veteran indicated that he had a new job. The Veteran was afforded a VA Compensation and Pension (C&P) PTSD examination in June 1998. Following discharge from service, the Veteran attended college and obtained a business degree. During that time, however, the Veteran stated that he had "rages," fights, and temper problems. This behavior caused the Veteran to lose a "real good job." The Veteran stated that he had been trying to "make it" without working since last year. He also reported having nightmares one to two times weekly for 30 years, as well as flashbacks. A mental status examination revealed the Veteran to be neatly and casually dressed. He was pleasant, cooperative, and goal-oriented with the ability to organize his thoughts and express himself. The Veteran was also noted to be oriented and soft-spoken. The Veteran volunteered pertinent information and his affect was "moderate tension and anxiety." The Veteran's mood was moderately depressed (even on medication) and he used a great deal of denial. No evidence of psychosis, delusions, hallucinations, or organicity was found. He had above-average intellect, "some" insight, a good memory, and good judgment. The Veteran's GAF score was 55. The impression was chronic PTSD and major depression. The Veteran continued individual counseling at a VA mental health clinic in June 1998. He stated that he had less time to ruminate about Vietnam since he returned to work. However, the Veteran indicated that his "buddies" continued to call him when things were not well with them. In August 1998, the Veteran submitted a statement in support of the current claim in which he reported frequent panic attacks and nightmares. He also had violent outbursts, "severe" mood swings, social isolation, lost "many positions" as a result of his behavior, and experienced memory loss (i.e., forgetting names and places). In April 1999, the Veteran voluntarily resigned from his position after "almost going after" the owner of the business who purportedly called the Veteran "lazy and stupid." Also associated with the claims file is a July 1999 statement from L. Hughes, M.D. According to Dr. Hughes, she treated the Veteran from September 1997 to the present and expressed the opinion that the Veteran "definitely" suffered from PTSD, secondary to "the Vietnam War." A follow-up VA mental health treatment note dated February 2000 indicated that the Veteran's PTSD symptomatology continued to have a "significantly" negative impact on his ability to cope with everyday life events. Dr. Hughes submitted another statement in support of the Veteran's claim dated March 2000. In particular, Dr. Hughes stated that the Veteran suffered from major mood swings, isolation, PTSD, and depression with late onset. Despite being prescribed Prozac, Dr. Hughes stated that the Veteran's recurring nightmares and isolation "is still a major problem." Dr. Hughes also noted that VA diagnosed the Veteran as having GAF scores of 45 or lower, a finding with which she agreed. In a July 2000 VA therapy session, the Veteran reported having six or seven nightmares over the previous three to four months about committing suicide by gunshot. According to the Veteran, he never experienced such thoughts or nightmares, but related that they usually occurred following conversations with his mother, who had cancer. The Veteran was afforded a VA PTSD evaluation in November 2000. The Veteran reported experiencing combat-related nightmares, difficulty falling and staying asleep, night sweats, hypervigilance (including sleeping with a weapon nearby), daytime intrusive thoughts, poor concentration and short-term memory, depression, anxiety, increased irritability, interpersonal turmoil, familial and marital strife, social discomfort, occupational difficulties, exaggerated startle response, apathy, and emotional distance/detachment in relationships. The Veteran also acknowledged having homicidal thoughts and dreams, but denied any plan. Psychological testing revealed evidence of low self-esteem, distrust of his own thinking and decision-making strategies, resentment and hostility, family discord, excessive guilt and self-punishing thinking, suspicion and distrust of others, agitated rumination, concentration and memory problems, a perception that life was no longer worthwhile, unusual sensory experiences, social isolation, and greatly diminished psychological defenses/problem-solving resources. According to the examiner, the Veteran's profoundly elevated testing results "may be an exaggerated plea for help." Additionally, the examiner expressed the opinion that the Veteran's symptoms were in keeping with someone who participated in the kinds of combat that the Veteran reportedly experienced. The Veteran's GAF score was 42. The impression was chronic, recurrent PTSD and recurrent, moderate MDD. Further, the examiner stated that the Veteran continued to be adversely affected by his PTSD symptoms, and had significant levels of depression and anxiety. These symptoms, according to the examiner, interfered significantly with intra- and interpersonal, familial, social, and occupational contexts so that he was not able to participate in these areas as he had previously. In turn, the Veteran experienced guilt and grief as a result of these losses. In May 2001, the Veteran testified before a decision review officer (DRO) in connection with the current claim. Specifically, the Veteran indicated that he took anti-depressant medications for a period of 16 years. He also stated that he recently began working again after a five-year absence. He worked approximately 30 hours per week, but prior to this he was unable to keep jobs because of "getting into fights and things." The Veteran attributed the demise of two marriages to his PTSD symptoms and reported having a violent temper and being physically and verbally violent. The Veteran also preferred being alone, rarely socialized, and had no close friends, noting that he "pretty much ran them all away." He also experienced nightmares, cold sweats, interrupted sleep. Also associated with the claims file is a statement in support of the Veteran's claim from W.W., a long-time friend who met the Veteran shortly after his return from Vietnam. According to W.W., there was a "mean side" to the Veteran, one in which he would not be "pushed too far." W.W. recounted an instance where the Veteran got into a verbal altercation with another man while working as a lifeguard at a local pool. W.W. also indicated that he and the Veteran were roommates in college and the Veteran would get "in a few fights with the hippies," punch holes in walls, break furniture, have occasional nightmares, and self-medicate with alcohol. W.W. further stated that the Veteran spent periods of time alone and had difficulty with authority even though he was a "dedicated worker." The Veteran underwent a private psychiatric examination in September 2002 in conjunction with his application for Social Security Disability benefits. The Veteran's chief complaint pertained to PTSD and the examiner described the Veteran as a "good historian." In particular, the Veteran reported being hospitalized in 1970 for psychiatric care. He also acknowledged past treatment at a detoxification center for an addiction to Xanax. The Veteran was subsequently awarded Social Security Disability benefits in November 2002 as a result of PTSD and major depression. April 30, 2002 was the onset date identified at that time. The Veteran also submitted additional evidence in support of the current claim. Specifically, the Veteran submitted statements from Drs. Hughes and Ross which provided background on the nature and severity of his service-connected psychiatric disorders for the period of time prior to May 2, 2002. For example, Dr. Hughes stated that she treated the Veteran for one and one-half years from 1998 to 1999. During that time, the Veteran suffered from significant anxiety, social withdrawal, nightmares, and flashbacks from his tours in Vietnam. According to Dr. Hughes, the Veteran's GAF score was 36. She also noted that the Veteran experienced panic attacks and that "he will need continued treatment and support." Dr. Ross stated that he treated the Veteran on both an inpatient and outpatient basis from 1990 to 1992. According to Dr. Ross, the Veteran was hospitalized for a period of five weeks in California with diagnoses of PTSD; panic disorder without agoraphobia; recurrent, severe MDD; and benzodiazepine withdrawal (Xanax). Following inpatient care, Dr. Ross treated the Veteran for "close to" two years. The Veteran was diagnosed as having "severe and disabling" PTSD which was characterized by severe flashbacks of combat experiences, distressing nightmares, a startle reflex, emotionally labile mood, defensive posture, irritability, and angry outbursts, as well as recurrent and distressing images and thoughts of traumatic events, avoidance of feelings or thoughts associated with experienced traumas, emotional numbing, repression of memories, occasional hypervigilance, and detachment from others. Dr. Ross stated that in his opinion, the Veteran was disabled due to the severity of his PTSD symptoms. In June 2008, Dr. Steip wrote a letter to the Veteran in which he indicated that the Veteran's records were shredded in the past six months because they were approximately 18 to 19 years old. J. Rubenstein, Ph.D. also submitted a letter to the Veteran in July 2008 in which she acknowledged treating the Veteran privately for a period of approximately one and one-half years beginning in 1994. Dr. Rubenstein recalled performing a neuropsychological evaluation on the Veteran due to his anxiety and difficulties related to PTSD. However, Dr. Rubenstein indicated that the bulk of her records from private practice had been shredded since they were over ten years old. Dr. Ross submitted another undated statement on the Veteran's behalf, but this statement was duplicative of information received from him previously. The Veteran's representative submitted a statement from the Veteran in February 2010. According to the Veteran, he had "major problems" with PTSD dating back to the 1970s. The Veteran stated that he last worked in 1997 and subsequently lost his home to foreclosure in 2001. The Veteran also stated that he attended a PTSD "group" for a number of years at VA and that his GAF scores were 36-40. The Veteran requested a 100 percent evaluation. A November 2009 statement from former comrade R.C., attests to the Veteran's participation in combat in Vietnam during his period of service. It also indicates that the Veteran has informed R.C. of his struggles with PTSD including flashbacks, isolating behaviors, and withdrawing from family and friends. R.C. reported that he encouraged the Veteran to enter into a residential PTSD treatment program. A detailed, 7 page single-spaced letter from the Veteran's treating VA psychologist, dated in November 2011 provides extensive insights concerning the Veteran's mental health status, PTSD symptoms and level of disability from 1998 through May 2002. The Board finds it thorough and highly probative as to the Veteran's level of functioning prior to May 2, 2002, and will therefore discuss it in detail. The psychologist reported that he had provided mental health treatment to the Veteran through VA beginning in January 1998 when he came to VA for an initial intake evaluation for PTSD and received a diagnosis of PTSD, delayed onset, and MDD. The psychologist provided a review of excerpts from the Veteran's individual psychotherapy sessions. The examiner commented that he had reviewed the January 2011 BVA decision and noted that it reflected that the compiler spent many hours researching the paperwork associated with the Veteran's appeal. Despite this, the psychologist provided his opinion, with supportive reasoning, that the Veteran's sustained level of functioning from January 1998 through May 2002 approximated total impairment. He further stated that, in his expert opinion, as to the periods prior to May 2, 2002, and as of May 2, 2002, there was no difference between the Veteran's severity of PTSD, or his functioning. He emphasized that, to the extent that his misstatement in a May 6, 2002, progress note suggested such a difference, he wished to resolve that with this letter. The psychologist felt, to the extent that a 100 percent rating was not assigned, that sticking to the "letter of the GAF" inasmuch as that suggested to the Board that the Veteran was not totally disabled due to PTSD, was wrong in the Veteran's case. The psychologist provided a detailed commentary as to the Veteran's mental health visits for the period in question. He also included GAF scores, which ranged from 51 in April 1999 to 41 in August 2000 and November 2000. In August 2002, the GAF was 42. Between October 1999 and August 2002, the GAF ranged from 44 to 41, with a 46 in July 1999. He noted that the Veteran tried to work during that period and that the psychologist encouraged him in this effort. He felt it was better to encourage the Veteran rather than to have him give in to his PTSD-related problems. He felt the Veteran was struggling with his self-worth, which he gauged in large part based on whether he was working. The psychologist directly addressed those parts of the prior Board decision that were relied upon to deny the Veteran a 100 percent rating. He commented that the use of the GAF scores, while utilitarian to a degree, is often subjective and dependent upon the perspective of the given provider. Thus, a range in scores is expected. He explained his opinion that the Veteran often used humor in his reporting of his problems to keep away the pain he was experiencing. Thus, the GAF's may have been inflated. He noted that the Veteran used many psychological defenses for his PTSD, including humor, rationalization and intellectualization. He thus felt that the finding that the PTSD symptoms waxed and waned to be inaccurate and punitive. He felt that the Veteran's attempts to work, which ended in failure, were attempts to keep his identity intact and keep his trauma-related thoughts at bay. He wanted to keep identifying himself as the sarge, the one who helps others, not who needs help. He found that the Veteran's attempts to work despite humiliation and problems relating to PTSD were his attempts to find a measure of self-worth. Despite the GAF scores, which may have suggested he could not work, the psychologist felt that it was better for the Veteran to try to work and to work on it in therapy. The psychologist directly addressed a May 6, 2002, progress note which indicated in part that the Veteran had recently experienced the death of his mother, estrangement from his siblings and loss of a 16 month period of employment. He opined that even a cursory reading of the May 6, 2002, progress note revealed a paucity in quality of life that belies the experience of satisfaction with those "waxing and waning" experiences. He also corrected the statement regarding 16 months of employment, noting that the Veteran had worked 16 months over the last few years. He cited a period of 8 or 9 months with a Taiwanese business owner, then a 2 year gap before he was re-employed for about 8 or 9 months, which ended with an almost physically violent altercation with his boss after the boss pocketed thousands of dollars in sales the Veteran had agreed to send to first responders in New York. The psychologist thus concluded by noting that although the Veteran was employed for periods of time, he was not particularly effective in those contexts. The psychologist also cited to Dr. Hughes' opinion and GAF of 36 for that time period as support for the finding as to an increased rating. Noting that the Board observed in January 2011 that the Veteran submitted an altered copy of a VA examination report, the psychologist stated that there was nothing experienced in over 130 hours spent in the same room with the Veteran that would suggest that he would intentionally commit such action. He felt there was nothing he saw that would cast doubt on the Veteran's character. The examiner summed up his statement in support of finding the Veteran totally disabled due to PTSD by saying that the Veteran demonstrated that he was unable to work on at least two occasions during the period in question and that his GAF scores were at least at the same level since 1999. The RO/AMC tried to get records from the Veteran's identified employers but were informed that records were no longer available. A 1998 W2 form reflects that the Veteran received $36,925.91 in third party sick pay. He was informed that attempts were made to get this information in December 2012. In a lengthy July 2012 letter to VA in response to the Board-ordered development, the Veteran reported that he had lost his job as Vice President of a company in 1997 after having been put on disability without pay due to surgery. He reported that he "went ballistic" and got violent and threatened his boss and the HR person. He was escorted out with police. Eventually, he got a lawyer and received third party disability pay in 1998. This was a particularly difficult time for the Veteran as he had learned that two men in his unit had died. They had reconnected with him recently and it unnerved him when they died. He found work in October 1998, unrelated to his field, after having begun therapy with the VA psychologist who authored the extensive November 2011 letter. There, his boss, from China, had engineers come over from China and treated them like slaves, locking them up in small houses and then sending them back to Taiwan rather than sponsoring them to remain in the U.S. He was verbally abused by the boss, retaliated with violence, and quit after being asked to leave in April 1999. He did not work in 2000. He only went out to see his VA psychologist and go to therapy. In 2001, his bills got very high and his mother got cancer. In March 2001, he went back to Thermaserv as the old company went bankrupt and the new company was run by people who did not know about his altercation. He worked there until January 2002. He reports that he was at his wits end during this period. He had gone through his savings and his 401K. He felt his life was over and he wanted it to be over. His only salvation was seeing his VA psychologist. He was afraid to go out of the house lest he get another assault charge. He was aware that he would go off at any second. During the short period he worked over the years in question, he would travel with his job. He would get to the city a day early if possible so he could hide in his room for a day with the blinds closed getting up enough nerve to see the appointments. He would forget what city he was in and have panic attacks. As for his final period of employment, the Veteran reported that he had come up with a plan to sell flag mugs with a 10% of the profit going to first responders on 9/11 in New York. He worked with the State of New York and had many contracts. He sold many mugs. His boss then told him not to pay the 10% donation and to "screw them," because he wanted the profit. He got into a fight with his boss and left after things got out of control. He then had 3 bypass heart surgeries shortly thereafter. He stated that his psychologist told him to apply for PTSD VA benefits. Things had not changed for him since 1997. He describes himself as a broken and confused man, then and now. He applied for SSA in January 2002. He had applied for employment in 2001 despite his PTSD because he did not want to end up like his fellow comrades who were homeless, penniless and begging. He went and did what he could with nothing lasting long because something always set him off. During this time he felt like hurting himself and others. He would forget where he was at times. The Veteran later stated that he acknowledges that he worked and was paid for some periods of time during the period in question, and does not expect payment for those months in which he worked, but that he was totally disabled due to PTSD and unable to work for the periods from January 5, 1998, to prior to May 2, 2002, when he was not working. In December 2012, the Veteran stated that he would like his case to be completed without further delay. In a January 2013 report of contact, it is noted that the Veteran stated via telephone that he did not expect to be paid for the months he worked from 1998 through 2002. He reported that there were 30 months of unemployed time during that period. Thereafter, in January 2013, the RO issued a supplemental statement of the case continuing the denial of the claim for PTSD in excess of 70 percent, and denying TDIU. In April 2013, the Veteran's representative sent, directly to the Board, a copy of the Veteran's Social Security Earnings Statement for the period from 1963 to 2012. The representative reported that the tax records and W2's no longer exist either with the Veteran or with the IRS. The representative stated that in 2000, the Veteran was unable to work at all and had no income. The report shows income in the other years, to include over $45,000 in 1998, down from $65,000 in 1997, $18,844 in 1999, $0 in 2000, $65,314 in 2001, and $48,713 in 2002. After thorough review of all of the pertinent evidence, the Board finds that PTSD more nearly approximates total occupational and social impairment rather than social and occupational impairment with deficiencies in most areas prior to May 2, 2002 for specific periods laid out most clearly by his treating VA psychologist and statements of the Veteran that occurred contemporaneous in time to the events. During the period in question, the Veteran demonstrated, according to the psychologist, grossly inappropriate behavior, persistent danger of hurting self or others and intermittent inability to perform activities of daily living. The treatment and examination records discussed in detail above are replete with support for the fact that he suffered total occupational and social impairment. Moreover, his explanation of his activities and behaviors persuades the Board that he was experiencing this high a level of impairment. He has written about periods in which he had substantial anxiety over his job which, in this case, the Board views as total social and occupational impairment. The periods specifically for which the Veteran demonstrated total occupational and social impairment are from January 5, 1998, through April 1998, and from April 1999 to mid-May 2001. These periods are derived from the psychologist's notes and detailed observations of the Veteran throughout that time period as well as other evidence of record. However, for the periods from May 1998 through March 1999, and from mid-May 2001 to May 1, 2002, the Veteran was able to work and thus was not totally disabled. While the Veteran reported in July 2012 that he did not go back to work until around October 1998, the psychologist's notes reflect that the Veteran had started working in May 1998. A May 11, 1998, note indicated that the Veteran talked about his new job and indicated that he was uncertain how long he would stay with the company. In June 1998, the Veteran reported that the person for whom he was working frowned on people taking time off but he would try to keep his next appointment. In July 1998, the Veteran discussed with the psychologist continued difficulties at his workplace. In September 1998, the Veteran reported that his employment context was tolerable. On April 1, 1999, he reported that he had resigned his position. In light of the information provided in the psychologist's notes, the Board finds that the Veteran is not entitled to a total schedular rating from May 1998 through March 1999 as he was able to work during that time period and thus was not totally impaired. The Board finds the reports the Veteran made to the psychologist contemporaneous in time to the events to be the most probative evidence as to when the Veteran was working rather than statements made many years thereafter. In his July 2012 statement, the Veteran reported that a friend helped him get a job in March 2001, which he held until January 2002. He indicated that he applied for Social Security disability benefits in January 2002. However, it is noted that during a May 23, 2001 hearing with a Decision Review Officer, the Veteran reported that he had just started working one week earlier. The Board finds the Veteran's May 2001 hearing testimony to be the most probative evidence concerning when he actually began the period of employment that started in May 2001. The reason for this is that the Veteran provided the information to VA contemporaneous in time to starting the position. In his VA Form 21-8940 dated May 1, 2002, the Veteran stated that he last worked full time May 1, 2002 and became too disabled to work on May 1, 2002. In an accompanying VA Form 21-4192, he indicated that the date he last worked was May 1, 2002. The Board finds this information provided by the Veteran contemporaneous in time to leaving a position to be highly probative evidence as to whether he was totally disabled prior to May 2, 2002. While SSA provided benefits to the Veteran starting April 30, 2002, SSA determinations are not binding on VA. The Board finds most probative the documentation filed with VA by the Veteran in May 2002, indicating he was able to work until May 1, 2002. Accordingly, he is not totally disabled from mid-May 2001 to May 1, 2002 pursuant to the rating criteria. Unfortunately the dates of employment are not all precise in the record. Accordingly, the Board has approximated the dates other than January 5, 1998, the effective date of service connection and May 1, 2002, the date the Veteran reported he became too disabled to work, as necessary. This is not prejudicial to the Veteran as 38 C.F.R. § 3.31 provides that effective dates for increased ratings cannot be made effective prior to the first day of the calendar month following the month in which the award became effective. In making this determination, the Board finds the aforementioned November 2011 psychologist's report, coupled with the Veteran's descriptions of his activities contemporaneous in time to the relevant time periods, to be highly persuasive and well-supported evidence. The psychologist's expert opinion is wholly supported by his detailed recitation of the facts as well as his explanation. However, the Veteran has candidly admitted that he was able to and in fact worked during the time periods which are documented in the record. Thus, for the periods other than those listed above, prior to May 2, 2002, the Veteran's PTSD was not productive of total occupational and social impairment. Rather, his PTSD was productive of not more than 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 during that time period. As to the TDIU component of his increased PTSD rating claim, the Board finds that the preponderance of the evidence is against a finding of TDIU as to the periods during which he was working. During these periods, the income earned by the Veteran indicates that he was able to engage in and retain substantially gainful employment. The Veteran has not asserted otherwise. As to the period in which he manifested total occupational and social impairment, and thus met the scheduler criteria for TDIU, from January 5, 1998, through April 1998, and from April 1999 to mid-May 2001 the issue is moot. The Board notes that TDIU is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. VAOPGCPREC 6-99; 64 Fed. Reg. 52,375 (1999). Accordingly, the disability warrants a 100 percent scheduler rating only for the periods from January 5, 1998, through April 1998, and from April 1999 to mid-May 2001, but not for any other relevant period prior to May 2, 2002. Thus, the Veteran is not entitled to a 100 percent schedular evaluation or TDIU from May 1998 through March 1999 or from mid-May 2001 to May 1, 2002. See Fenderson v. West, 12 Vet. App. 119 (1999). ORDER The appeal for entitlement to an increased disability rating for the service-connected bladder incontinence is dismissed. An initial disability evaluation of 100 percent for the service-connected posttraumatic stress disorder (PTSD) prior to May 2, 2002, is granted only for the periods from January 5, 1998, through April 1998, and from April 1999 to mid-May 2001, subject to the criteria applicable to the payment of monetary benefits. An increased initial disability evaluation in excess of 70 percent for the service-connected posttraumatic stress disorder (PTSD) prior to May 2, 2002, for the periods other than from January 5, 1998, through April 1998, and from April 1999 to mid-May 2001, is denied. TDIU is moot for the period from May 2, 2002, for the periods from January 5, 1998, through April 1998, and from April 1999 to mid-May 2001. TDIU is denied for the periods other than from January 5, 1998, through April 1998, and from April 1999 to mid-May 2001. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs