Citation Nr: 1624941 Decision Date: 06/21/16 Archive Date: 07/11/16 DOCKET NO. 05-22 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for dysthymic disorder with major depression and posttraumatic stress disorder (PTSD), prior to July 1, 2005. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to July 1, 2005. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from November 1965 to September 1968. These matters come before the Board of Veterans Appeals (Board) on appeal from a July 2007 rating decision by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection for PTSD and assigned an initial rating of 50 percent, effective July 1, 2005; and denied entitlement to TDIU. The case was previously before the Board in February 2009; the Board remanded the issue of entitlement to TDIU and denied a rating in excess of 50 percent for PTSD. The Board additionally granted service connection for dysthymic disorder with major depression. The Veteran appealed the Board's denial of a rating in excess of 50 percent for PTSD to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the February 2009 decision with respect to such issue, which was granted in an April 2010 Order. During the pendency of the February 2009 Board remand, the RO effectuated the grant of service connection for dysthymic disorder and depression in a July 2009 decision. A 30 percent rating was assigned effective from September 8, 2004, the date of the original claim for service connection, and the multiple psychiatric disorders were combined into a single disability. This combination of diagnoses was appropriate; the effect was to associate the more recently initiated appeal of the rating prior to July 2005 with the ongoing appeal of the rating after July 2005. The RO's decision resulted in assignment of an earlier effective date for the service connection entitlement. Further, in an April 2010 rating decision, the RO granted a 100 percent rating for dysthymic disorder with major depression and PTSD, effective January 5, 2010. This represented a full grant of the benefit sought on appeal with regard to rating for the psychiatric disorder for the period from January 5, 2010, onward; the ratings prior to that date remained on appeal. In accordance with the JMR, the Board in turn remanded the matter to the RO for further development in July 2010. The Board again remanded these matters in October 2012. In a July 2014 rating decision, the RO granted a 70 percent rating for dysthymic disorder with major depression and PTSD for the period from July 1, 2005 to January 5, 2010. The RO also granted TDIU, effective July 1, 2005. This decision rendered moot the question of entitlement to TDIU from July 1, 2005, forward. However, the issue of entitlement to TDIU for the period prior to July 1, 2005 remains on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In July 2014 and November 2015 statements, the Veteran, through his representative, withdrew his appeal pertaining to the issue of entitlement to an rating in excess of 70 percent for dysthymic disorder with major depression and PTSD, for the period from July 1, 2005, to January 5, 2010. In January 2016, the Board issued a decision recognizing the withdrawal and dismissing this portion of the appeal; the issue is no longer in appellate status or before the Board at this time. The January 2016 Board decision also noted a November 2015 statement from the Veteran's representative that sought to raise an issue of entitlement to an effective date prior to September 8. 2004 for the award of service connection for the Veteran's dysthymic disorder with major depression and PTSD. The Board remanded the rating and TDIU issues remaining on appeal as inextricably intertwined with the RO's resolution of the Veteran's request for a revised effective date. In a February 2016 rating decision, the RO revised the effective date for the award of service connection for dysthymic disorder with major depression and PTSD to August 24, 2004. At the same time, the RO issued a new supplemental statement of the case (SSOC) that addressed the TDIU issue remaining on appeal, but not the additional appellate issue of entitlement to a higher rating for the service-connected psychiatric pathology for the period prior to July 1, 2005. The RO issued a VA Form 8 Certification of Appeal that re-certified the TDIU issue back to the Board, without reference to the psychiatric rating issue. The Board has carefully considered whether appellate review of both issues may proceed in light of the fact that the RO has not issued an SSOC regarding the psychiatric rating issue, nor has the that issue on appeal been re-certified to the Board. The Board finds that it is most appropriate in this case to take jurisdiction over the psychiatric rating issue, especially in light of the fact that this Board decision here results in a grant of the benefit sought on appeal. See 38 C.F.R. § 19.35 (VA Form 8, Certification of Appeal, is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue). The Board notes that there is no apparent indication of any outstanding development pending with regard to the rating issue. The Board finds that there is no prejudice to the appellant in the Board taking jurisdiction of the psychiatric rating issue and completing final appellate review at this time, as the Board finds that a grant fully satisfying the Veteran's appeal is warranted at this time. The November 2015 brief from the Veteran's attorney clearly explained that the Veteran specifically seeks either a 100 percent schedular rating for the psychiatric disability for the period under consideration or a 70 percent rating together with a TDIU. This is consistent with the Veteran's prior expression of satisfaction with the award of a 70 percent rating with a TDIU for the period beginning July 1, 2005, and the accordant withdrawal of that portion of the appeal discussed in the Board's prior January 2016 decision. As discussed below, the Board now finds that the Veteran is entitled to a 70 percent rating and a TDIU for the period prior to July 1, 2005. The Board finds that this represents a grant of the benefit sought on appeal such that the appeal is resolved by this Board decision. Finally, the Board notes that each of the prior Board actions in this appeal have been issued by a Veterans Law Judge (VLJ) other than the undersigned. This case has recently been reassigned to the undersigned Veterans Law Judge for final appellate review. FINDINGS OF FACT 1. It is reasonably shown that throughout the appeal period (prior to July 1, 2005), the Veteran's dysthymic disorder with major depression and PTSD was manifested by symptoms 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; impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. 2. The evidence shows that the Veteran was unable to obtain or maintain substantially gainful employment as a result of his service-connected disability throughout the period prior to July 1, 2005. CONCLUSIONS OF LAW 1. A 70 percent schedular rating is warranted for the Veteran's dysthymic disorder with major depression and PTSD throughout the period under consideration (i.e., prior to July 1, 2005). 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.130, Diagnostic Code (Code) 9411 (2015). 2. A TDIU rating is warranted for the period prior to July 1, 2005. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Inasmuch as the full benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist oversight is harmless. Legal Criteria, Factual Background, and Analysis Disability Rating for Psychiatric Impairment Prior to July 1, 2005 The Veteran seeks assignment of a disability rating in excess of 30 percent for his service-connected dysthymic disorder with major depression and PTSD for the period prior to July 1, 2005. The effective date for the award of service connection for PTSD is August 24, 2004. This effective date assignment for service connection is not on appeal in this matter; accordingly, the period for which a rating in excess of 30 percent may be considered in this case is from August 24, 2004 to July 1, 2005. Additionally, the Veteran seeks assignment of a TDIU in connection with the psychiatric rating claim, for the same period prior to July 1, 2005 (the date from which the Veteran's existing TDIU has been assigned). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two ratings shall be applied, the higher rating 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. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The Veteran's service-connected psychiatric disability is rated under the General Rating Formula for Mental Disorders. A 30 percent rating is warranted if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is 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. The Court has held that when it is not possible to separate the effects of a service-connected condition and a nonservice-connected condition, the provisions of 38 C.F.R. § 3.102 mandate that reasonable doubt on any issue is to be resolved in the Veteran's favor, and that all signs and symptoms be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181, 182 (1998). In this case, the evidence of record suggests that the Veteran has been diagnosed with a nonservice-connected personality disorder in addition to his service-connected psychiatric diagnoses. In the absence of evidence clearly distinguishing nonservice-connected manifestations from service-connected manifestations, the Board will, for the limited purpose of this decision, attribute all of the Veteran's mental health impairment to his service-connected psychiatric diagnoses. One factor which may be considered is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); see also Richard v. Brown, 9 Vet. App. 266 (1996); Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). GAF scores ranging from 61 to 70 reflect 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, and has some meaningful interpersonal relationships. A score of 51 to 60 indicates 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 peer or coworkers). A GAF score of 41 to 50 indicates serious symptoms and serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep job), while a GAF score of 31 to 40 indicates major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed, avoids friends, neglects family, and is unable to work). See DSM-IV. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated "DSM-5." As the Veteran's claim was initially certified to the Board prior to August 2014, the DSM-5 is not applicable to this case. According to the DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In reviewing the evidence of record, the Board will consider the assigned GAF scores; however, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability. Rather, GAF scores 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). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. The Board must determine whether the Veteran's psychiatric symptoms more nearly approximated the severity of impairment contemplated by the criteria for a rating in excess of 30 percent prior to July 1, 2005. Notably, effective July 1, 2005, the Veteran has already established entitlement to a 70 percent rating with a TDIU on the basis of the severity of his service-connected psychiatric impairment and his resultant unemployability. The Veteran has indicated that this appeal would be satisfied by a similar award (70 percent rating plus TDIU for psychiatric impairment) for the remaining period on appeal from August 24, 2004 to July 1, 2005. After careful review of the evidence, and with attention to the concerns discussed in the JMR (granted by an April 2010 Court Order), the Board finds that the criteria for a 70 percent disability rating for PTSD are reasonably met for the period prior to July 1, 2005. (As discussed further below, the Board further finds that a TDIU is warranted for this period, establishing entitlement to the complete benefit sought by the Veteran and resolving the matters on appeal.) A February 2004 VA Biopsychosocial Assessment report shows that the Veteran's symptoms of mental illness featured "extreme anger," "withdrawing from socializing," "anxiety," and "alcohol abuse in the past." The report describes that the Veteran had not attempted suicide, but he "has [] passive S/I [suicidal ideation]." The Veteran also had "some passive H/I [homicidal ideation] in the past." He reported no hallucinations. He reported experiencing sleep problems limiting him to "3-4 hrs per night." He reported difficulties with "fighting." The Veteran's thought processes were normal, thought content was "linear," but the Veteran reported an "inability to cope with daily problems." The Veteran described his relationships with his wife and children to be "excellent" and "very good." The examining psychologist found that the Veteran's descriptions of his own symptoms were of "good" reliability. The final list of diagnostic symptoms featured: isolation, anger, insomnia, stress, and anxiety. Other VA treatment reports from 2004, including numerous group therapy reports, present less detail regarding the Veteran's psychiatric symptomatology, but appear reasonably consistent with the description of impairment shown in the detailed February 2004 report discussed above. An April 2004 report does note that the Veteran had thoughts of suicidal and homicidal ideation occasionally (although "seldomly"), and his affect was despondent with mood depressed. A January 2005 VA mental health treatment report discusses the Veteran's difficulty with "[f]requent depressive affect," "[f]requent angry affect," and "[l]imited socialization." A GAF score of 65 was assigned. Another January 2015 VA mental health treatment report discusses the Veteran's "ongoing feelings of depression and sadness." Significantly, the report describes "a peaked elevation in the fall of 2004." The Veteran reported "feelings of decreased energy, insomnia, and feelings of hopelessness occurring daily," although with some recent improvement. The report discusses the Veteran's "long history (well over 30 years) of anger control problems, physical fighting, failure to conform to lawful behaviors, lack of remorse for having hurt others, self perception of being unique or having special abilities, sense of entitlement, and lacking empathy." The Veteran described that his anger symptoms manifested in antisocial and violent behaviors, such as that he "would 'threaten' people to force compliance," for example in that he "threaten[ed] to kill his son or have thugs beat up [h]is son if he didn't comply with the patient's wishes..." The Veteran discussed other instances of his difficulties with hostility, including with regard to his relationship with his brother and with some VA professionals. Mental status examination findings were essentially normal with regard to presentation, speech, thought processes, associations, eye contact, orientation, and the absence of hallucinations or delusions. The Veteran's mood was "dysphoric with congruent, angry affect." At the time, the Veteran denied any current suicidal or homicidal ideation, plan, or intent. A GAF score of 65 was noted, and the VA psychologist remarked upon the need for treatment to address "[i]ntense hostility and anger, depression, violent thoughts, limited insight, poor relationships." A March 2005 VA psychiatric therapy discusses the Veteran's "chronic anger," and that the Veteran "readily fights with others." He had begun attending a VA anger management class. A later March 2005 VA psychiatric therapy note shows that the Veteran completed the six-session anger management class. The Veteran was assessed using a "hostility scale," in which "any score of above 10 predicts health problem[s] in the future." The Veteran's hostility scale was "15" at the beginning of the class, and was "33" at the conclusion. The Board notes that this appears to indicate that the Veteran was experiencing significant difficulty controlling his hostility, even with the benefit of therapy and classes, with a substantial exacerbation of the symptomatology during time of the class. An April 2005 mental health intake note shows that the Veteran described his difficulty being "very explosive," including becoming involved in "fights" from which "he has sustained broken hands and other injuries." The report discusses the Veteran's "irritability," and "panic" with the Veteran feeling "provoked by people on the streets and he got into physical fights or verbal confrontations...." The Veteran explained that he was increasingly isolated, "[n]ow staying away from trouble, prefers to keep home to himself." The Veteran also described that his "[s]leep is frequently interrupted by dreams or restlessness," with discussion of associated nightmares. The Veteran described that he had experienced some marriage problems but that these had improved as he had "cut down on the drinking." Mental status examination findings were generally consistent with prior such findings, discussed above, but with a notation that the Veteran "admits to occasional death thoughts." A GAF score of 65 was noted. A May 2005 private psychiatric evaluation report shows that the Veteran "reported ongoing bouts of depression and 'anger," with "feelings of worthlessness, uselessness as well as helplessness describing death wishes and even suicidal ideas." The Veteran denied a suicidal plan or intent associated with his suicidal ideation. The report notes that the Veteran has "bouts of irritability, he gets easily frustrated and has problems controlling his anger which has interfered with his capacity to get along with others and it has also affected his marriage." The report notes the Veteran's description of "getting 'easily startled' and rather paranoid as well as defensive at times," and that he "experiences nightmares as well as flashbacks related to his Military experience which never seemed to have 'gone away.'" These symptoms were noted to have had onset long predating the period currently on appeal. Mental status examination findings were essentially consistent with those shown on prior reports, and a GAF score of 55 was noted. The authoring psychiatrist remarked that the Veteran's "capacity for industrial, social and academic adaptability [are] hindered by his mental condition." A November 2005 statement from the Veteran's treating physician refers to treatment of the Veteran's "Panic Disorder, Post Traumatic Stress Disorder and Hypertension," and asserts that the authoring doctor and the Veteran's private treating psychiatrist believe that the Veteran "is unable to work because he is unable to perform any social, academic and industrial work of any kind." (Although this report was prepared a few months following the specific rating period on appeal, the Board has considered this information in the appropriate context of the complete evidentiary record.) A number of lay statements have been submitted to describe the Veteran's observable mental health concerns during the period pertinent to this case. A January 2005 written witness statement submitted by a friend and former work colleague of the Veteran's describes that the Veteran was "very withdrawn and difficult to communicate with, even in a social setting.... I always saw him as a highly irritable individual." A January 2005 written statement from the Veteran's wife describes witnessing the Veteran's "severe bouts of depression and sleepless nights," and describes that he "frequently suffers from emotional outbursts of anger that can be triggered by the slightest occurrence." She recalled that he "did attend anger management sessions but with unsuccessful results." Furthermore, she states that "[a]t night, he cannot fall asleep unless there is a gun at his bedside." She explains that "in[] a restaurant or other public place, he must sit with his back to the wall in order to feel at ease." She also notes that the Veteran "has alienated his friends and family with his negative attitude and state of depression. There is little communication with even his close relatives." She also describes that "[h]e is always frustrated and jittery about the most trivial things." Another letter from the Veteran's wife, submitted with a November 2015 attorney brief, further discusses her recollection of the Veteran's observable mental health symptoms during 2004 and 2005. She describes "difficulty sleeping ... including nightmares where he is physically fighting with someone," "little or no patience for simple activities such as reading instructions," "frequent road rage behavior," "anxiety among crowds," "cannot stand crowds," "sits with his back to the wall because he does not want anyone coming up behind him," "violent tendencies," and notes that "[i]n May 2005 ... he became very depressed and frequently showed signs of panic attacks." Additionally, the Veteran's attorney directs attention (in the November 2015 brief) to indications of the Veteran's occupational impairment associated with psychiatric symptoms, including with reference to events from the Veteran's employment history (acknowledging that the entire employment history precedes the specific rating period currently on appeal). A May 2007 VA examination report documents the Veteran's account of his psychiatric symptom history, including what the VA examiner characterized as a description of "significant occupational impairment throughout his work history due to PTSD symptoms. For instance, vet reports history of difficulty getting along with others at work, including a tendency to isolate at work and to lose his temper during interpersonal interactions." Additionally, the report notes that "he threatened a co-worker on one occasion and was later written up for this." A May 2008 VA examination report documents the Veteran's description that the behavior involved "threatening his supervisor." A notable January 2010 report from another private psychiatrist presents the opinion, informed by review of the Veteran's medical records and interview of the Veteran, that the Veteran had previously been assigned "high GAF scores, consistent with a much higher functional capacity than my review of the case indicates that the veteran has ever had since his discharge from active duty service." The author assesses that "this veteran has not had a GAF score of greater than 40 since his active duty service." Furthermore, he opines that "the combined disease processes of PTSD and affective disorder have completely disabled [the Veteran] since February 1999...." The author asserts that "[a] psychiatric patient who has intermittent suicidal ideation, thoughts of harming other people, social isolation, the incapacity to engage with other people, the inability to leave his home, and a complete loss of functionality would not have a GAF score of greater than 40....," and then cites details of the review of the "information from the veteran's private psychiatrists begin[ning] on May 12, 2005" and, later, direct interview of the Veteran. The January 2010 private psychiatric report concludes that the Veteran's "severe PTSD ... has been completely disabling to him for an extended period of time, beginning immediately after his active duty service and becoming profoundly disabling by February 1999 to the point where he was no longer able to work." The author reiterates that that the Veteran "was unemployable due to his PTSD starting in 1999...." The JMR (granted by an April 2010 Court Order) in this case directed attention to the concern that the Board's prior appellate review of the Veteran's psychiatric disability rating claim did not adequately consider pertinent evidence. The JMR states that the Board, "in its explanation of why Appellant is not entitled to a 70 percent rating .... did not address whether the requisite occupational and social impairment was present, instead basing its decision solely on the absence of the delineated symptoms." Ratings are assigned according to the manifestation of particular symptoms; however, the use of the term "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 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). Notably, the RO's July 2014 rating decision formally recognized the Veteran's psychiatric impairment from July 1, 2005 to January 5, 2010 as most nearly approximating the criteria for a 70 percent rating : "occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood." The RO's July 2014 rating decision cited that the Veteran's private psychiatric records "from 2005-2010 noted that [he] had evidence of mood instability, cognitive deficits, difficulty with concentration, some paranoia, a lack of capacity to deal adequately with day to day stress ...." In brief, the Board finds that the probative contemporaneous evidence from prior to July 1, 2005 reasonably clearly shows that the Veteran experienced occupational and social impairment with deficiencies in most areas due to service-connected psychiatric symptoms. The Board finds that the evidence from the period reasonably indicates that the Veteran experienced deficiencies in most areas, including with regard to capacities pertinent to work, school, family relations, judgment, thinking, and mood. The Board finds that the evidence from the period clearly shows symptoms of suicidal ideation, impaired impulse control (such as unprovoked irritability with periods of violence), and difficulty in adapting to stressful circumstances, with suggestions of inability (or at least significant impairment of capacity) to establish and maintain effective relationships. For instance, the January 2005 VA mental health evaluation report shows that the Veteran's symptoms had already come to include "anger control problems, physical fighting, failure to conform to lawful behaviors, lack of remorse for having hurt others, self perception of being unique or having special abilities, sense of entitlement, and lacking empathy" by that time. The Board also finds that the broader set of evidence of record (including evidence from after the period on appeal that discusses the pertinent period in hindsight) further presents reasonably persuasive indications of symptomatology of analogous nature and severity to those contemplated by the criteria for a 70 percent rating. The Board acknowledges that there are some conflicting indications of record, some suggestions of the presence of a nonservice-connected personality disorder diagnosis, and that the evidence does not present unequivocal clarity as to the nature and severity of the Veteran's psychiatric impairment details for the period prior to July 1, 2005. However, overall, the Board finds that the evidence reasonably reflects a level of impairment with pertinent symptomatology most nearly approximating the "occupational and social impairment, with deficiencies in most areas" already established and recognized by VA for the period beginning July 1, 2005. Based on the evidence discussed above, and affording the Veteran the benefit of all reasonable doubt, an initial 70 percent rating is warranted in this case throughout the period prior to July 1, 2005. While some of the individual symptoms experienced by the Veteran during the pertinent period arguably resemble those listed as examples in the rating criteria for various rating levels, the Board finds that the pertinent psychiatric symptoms present an overall disability picture most consistent with the level of psychiatric impairment contemplated by the criteria for a 70 percent rating. See 38 C.F.R. § 4.130; see Fenderson v. West, 12 Vet. App 119 (1999). The Board finds that the level of impairment shown for the period prior to July 1, 2005 is reasonably consistent with the level already recognized by VA as 70 percent disabling from July 1, 2005. Accordingly, the Veteran is entitled to a 70 percent rating for dysthymic disorder with major depression and PTSD for the period prior to July 1, 2005. The Board has determined that the Veteran is entitled to a 70 percent rating and, as discussed just below, a TDIU for the period prior to July 1, 2005. As explained in the introduction section of this decision, the Veteran has expressed that this combination of determinations would satisfy his appeal such that this decision represents a complete grant of the benefits sought on appeal. Accordingly, there is no need to further discuss any question of entitlement to a higher rating or additional compensation for dysthymic disorder with major depression and PTSD in this case. The Board is mindful of the Court's holding in Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s) by having an "additional" disability of 60 percent or more ("housebound" rate)); see 38 U.S.C.A. § 1114(s). In this case, the Board briefly observes that the Veteran's only other service connected disabilities during the pertinent period are (1) hearing loss rated noncompensably disabling and (2) tinnitus rated 10 percent disabling. No inferred claim for SMC is raised in connection with this appeal. TDIU Prior to July 1, 2005 The Veteran has already established VA-recognized entitlement to a TDIU rating on the basis of service-connected occupational impairment effective from July 1, 2005. The Veteran contends that he was unemployable due to his service-connected psychiatric disability for the period on appeal prior to July 1, 2005. This matter arises from the Veteran's appeal for a higher initial disability rating for dysthymic disorder with major depression and PTSD, with an effective date now established to be August 24, 2004. Accordingly, the period for consideration in this matter is from August 24, 2004 to July 1, 2005. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16. It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). If a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where a Veteran is unemployable due to service connected disability. 38 C.F.R. § 4.16(b). The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A claim for TDIU presupposes that the rating for the service-connected disabilities is less than 100 percent, and only asks for a TDIU rating because of "subjective" factors that the "objective" rating does not consider. Vittese v. Brown, 7 Vet. App. 31, 34-35 (1994). The newly awarded 70 percent rating for dysthymic disorder with major depression and PTSD meets the schedular requirements for a TDIU for the period prior to July 1, 2005. The Board further finds that the evidence of record shows that the Veteran was rendered unemployable by the disability for the period prior to July 1, 2005. The Board has carefully considered the findings presented in the pertinent mental health treatment records and in the credible lay testimony concerning the nature and severity of the Veteran's psychiatric impairment prior to July 1, 2005 (discussed above). The Board has determined that the evidence reasonably shows that the Veteran's noted symptoms resulted in significant occupational impairment with deficiencies in most areas, including the January 2010 psychiatric opinion asserting that the Veteran "was unemployable due to his PTSD" well prior to July 1, 2005, and throughout the period on appeal. As the Board finds no significantly contrary evidence of record, the Board is persuaded by the evidence indicating that the Veteran's psychiatric impairments rendered him unemployable prior to July 1, 2005. Accordingly, the Board finds that the Veteran was unemployable due to his service-connected dysthymic disorder with major depression and PTSD prior to July 1, 2005, and that a TDIU rating is warranted for the period prior to July 1, 2005. ORDER Entitlement to an initial 70 percent rating for the service-connected dysthymic disorder with major depression and PTSD for the period prior to July 1, 2005 is granted, subject to the controlling regulations governing monetary awards. Entitlement to a TDIU rating for the period prior to July 1, 2005 is granted, subject to the regulations governing payment of monetary awards. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs