Citation Nr: 1645787 Decision Date: 12/07/16 Archive Date: 12/19/16 DOCKET NO. 14-30 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD) and a major depressive disorder. 5. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). 6. Entitlement to an effective date prior to April 16, 2013 for the award of service connection for PTSD. REPRESENTATION Veteran represented by: Mark R. Lippman, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from December 1948 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran provided testimony at a videoconference hearing before the undersigned Veterans Law Judge in August 2016. A transcript is in the record. The Veteran, through his representative, submitted additional medical evidence in August 2016. This evidence has not been considered by the RO. However, 38 U.S.C.A. § 7105(e) provides that waiver of initial RO review of evidence submitted to the RO or the Board by the claimant or representative is presumed in cases when the substantive appeal was filed after February 2, 2013. 38 U.S.C.A. § 7105(e) (West 2014); VA Fast Letter 14-02 (May 2, 2014). As the Veteran's substantive appeal was received in August 2014, waiver of the additional evidence is presumed. The Board notes that it has assumed jurisdiction of the claim for entitlement to TDIU because such claim has been raised by the record and by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The preponderance of the evidence weighs against a finding of a nexus between the Veteran's current back disability and an injury sustained during active service. 2. The Veteran currently has hearing loss as defined by VA regulation, and competent medical opinion has related this hearing loss to the traumatic noise exposure that occurred during active service. 3. The Veteran currently has tinnitus, which has been related by competent medical opinion to the traumatic, in-service noise exposure. 4. The Veteran's PTSD and major depressive disorder have been productive of occupational and social impairment with deficiencies in most areas such as work and family relations for the entire appeal period. 5. The Veteran's service connected disabilities include PTSD and major depression, evaluated as 70 percent disabling; hearing loss; and tinnitus; he has a combined evaluation of at least 70 percent disabling. 6. Medical opinion states that the Veteran's PTSD precludes him from obtaining and maintaining substantially gainful employment for the entire period on appeal. 7. The Veteran's initial claim for service connection for psychiatric disabilities was received on April 16, 2013, which is more than one year after his separation from active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303 (2015). 4. The criteria for an initial 70 percent rating for post-traumatic stress disorder and a major depressive disorder have been met; however, the criteria for a 100 percent schedular rating have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.130, Code 9411. 5. The criteria for a total rating based on individual unemployability due to service connected disabilities have been met for the entire appeal period. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015). 6. The criteria for entitlement to an effective date prior to April 16, 2013 for the award of service connection for PTSD and a major depressive disorder have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400(b)(2)(i) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations obligate VA to provide claimants with notice and assistance. In this case, the Veteran was provided with complete VCAA notification in an October 2013 letter prior to the initial adjudication of his claims. The duty to notify has been met. The Board also finds that the duty to assist has been met. The Veteran has been afforded VA examinations of his claimed disabilities. The Veteran's VA treatment records have been obtained, as have all private medical records that he identified. The Veteran provided pertinent testimony at his hearing. There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeal. Service Connection The Veteran believes that he has incurred disabilities of the back and hearing due to active service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. If arthritis or other organic diseases of the nervous system such as sensorineural hearing loss become manifest to a degree of 10 percent within one year of separation from active service, it is presumed to have been incurred during active service, even though there is no evidence of arthritis or hearing loss during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997), overruled on other grounds by Walker v. Shinseki. In relevant part, 38 U.S.C.A. 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Back Disability The Veteran contends that he has developed a chronic back disability due to active service. He believes his back was injured in an explosion that blew him out of his bed. The Veteran has said that his back pain began sometime after his return from Vietnam. A review of the Veteran's over 20 years of service treatment records shows that they do not contain any evidence of a back injury, complaints of back symptomatology, or a diagnosis of a back disability. The Veteran's February 1969 retirement examination found that his spine was normal. He denied a history of bone, joint, or other deformity on a Report of Medical History obtained at this time, and back disability or related symptomatology was not included in the physician's summary. The post service medical records are also negative for evidence of a back disability during the first year following discharge and for many years thereafter. The initial medical evidence of a back disability is found in an August 1987 private medical record in which a history of occasional low back pain was noted while undergoing treatment for an unrelated disability. Other private medical records show that the Veteran was seen for low back pain that developed as he was moving furniture in January 1989. He was noted to have sustained a previous back injury in 1984 while moving a plant. Additional records show that the Veteran continued to receive treatment for back pain for months after this incident. His history makes frequent reference to a previous 1985 injury. A March 1989 private record indicates that this was a work-related lifting type injury. These records are negative for a reference to any previous injury in service or history of back symptoms prior to the 1984/1985 injury. Since the 1989 injury, the evidence shows that the Veteran has undergone back surgery in 1989, 1996, 1997, and 1999. None of these surgical records include a history of a back injury in service or reference any back issues prior to 1984. In a November 2013 statement, the Veteran's doctor states that he has been his primary care provider since 2009. The Veteran was reported to have undergone four back surgeries, with the most recent having occurred in 1996. The doctor states that while the Veteran was in Vietnam, he was injured in a blast that threw him across a room into a wall. This was around the time the back pain began and persisted. Given the long history of recurring pain, the doctor opined that it was highly likely that the Veteran's back issue was directly related to his service. The Board finds that the evidence does not support entitlement to service connection for his back disability. The evidence clearly establishes that the Veteran has a current back disability. Furthermore, the Board finds that the Veteran's statements pertaining to having been blasted against a wall during service are competent and credible. However, the preponderance of the evidence weights against a finding that there is a relationship between his current back disability and any in-service injury. The private medical records strongly indicate that the Veteran sustained the back injury that led to his current disability in 1989. These records repeatedly note a prior work-related injury that occurred in either 1984 or 1985. However, the Board finds that it is significant that in the frequent reviews of the Veteran's back history, there is not a single reference to military service or the claimed injury therein. The Board notes that it would have been in the Veteran's best medical interest to have reported any previous injury to receive the highest level of medical care. The Board finds it significant that he failed to report or discuss the service injury during the repeated medical visits for care pertaining to his back. The Board has weighed these private medical records against the November 2013 opinion from the Veteran's doctor and finds that they carry the greater evidentiary weight. The November 2013 clinician did not discuss the 1985 or 1989 injuries, or even indicate that he was aware of them. As such, this opinion is discounted for not discussing all the relevant facts. Furthermore, he mistakenly reports that the Veteran's most recent back surgery was in 1996 when it was actually in 1999. This suggests that the examiner did not have access to the Veteran's previous medical records for his back disability, and decreases the reliability of his opinion. While not having access to prior records is not fatal, it is significant when the opinion is not based on all of the pertinent facts and medical history. When weighing the evidentiary value of the contemporaneous private medical records against the November 2013 opinion, the Board finds that the records have the greater value. In light of this weighing, the preponderate against a finding of a nexus between the current back disability and active service. The medical history contained in such records also strongly suggests an absence of any back symptomatology prior to 1984/1985, and continuity of symptomatology is broken. Service connection on a presumptive basis has also been considered. However, the service treatment records are completely negative for complaints of back pain. More importantly, the February 1969 discharge examination found that the spine was normal, and the Veteran did not report a history of back pain when given the opportunity at that time. There is no evidence of a back disability during the first year following discharge, and it follows that a back disability cannot be presumed to have been incurred in service as a chronic disability. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In sum, as the preponderance of the evidence weighs against a finding of a nexus between the current back disability and active service, service connection is not established. Hearing Loss/Tinnitus The Veteran also contends that his current hearing loss and tinnitus are the result of acoustic traumas sustained during service such as this explosion as well as being in close proximity to artillery fire. Entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall not be established when hearing status meets pure tone and speech recognition criteria. Hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The United States Court of Veterans Appeals (Court) has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The service treatment records do not show any complaints, treatment, or diagnoses relating to hearing loss or tinnitus. The February 1969 discharge examination shows that the Veteran had auditory thresholds of 10 decibels at 500, 1000, 2000, and 4000 Hertz bilaterally. Hearing loss was not recorded on the Report of Medical History completed by the Veteran at this time. The post service medical records are also negative for evidence of hearing loss or tinnitus during the first year following discharge from service, and for many years thereafter. An April 2013 statement from the Veteran's usual health care provider states that the Veteran was exposed to toxic noise during service and has since suffered from sensorineural hearing loss with tinnitus. This was documented in an audiogram with mild to moderate sloping hearing loss. His examination was within normal limits. Based on the Veteran's military history and pattern of hearing loss, the examiner believed it likely that his hearing loss was directly attributable to active service. VA treatment records dating from April 2013 state that the Veteran has worn hearing aids for about 10 years. His history of noise exposure included a hotel bombing in Vietnam, and work with heavy equipment without hearing protection during service. No other noise exposure was reported. Pure tone testing showed moderate to severe hearing loss between 250 and 8000 Hertz for the right ear and moderately severe to profound hearing loss at these same frequencies for the left ear. The Veteran also reported occasional ringing in both ears. The results of pure tone testing at each frequency were not provided. Follow-up records show that the Veteran was fitted with hearing aids by VA. The Veteran was afforded a VA examination for hearing loss and tinnitus in January 2014. He reported military noise exposure including artillery and a hotel bombing in Vietnam. There was also non-military noise exposure during which the Veteran used hearing protection. The examiner reviewed the Veteran's claims file, and noted an April 2013 hearing examination conducted at a VA facility had showed auditory thresholds of 55, 45, 60, 65, and 80 decibels at 500, 1000, 2000, 3000, and 4000 Hertz for the right ear. The left ear had thresholds of 60, 60, 65, 70, and 80 decibels at these same frequencies. The January 2014 VA examiner also conducted audiometric testing, but the results were inconsistent or invalid for each ear. The used of the Maryland CNC test was deemed to be inappropriate for the Veteran. Therefore, the examiner was unable to provide an opinion as to the etiology of the Veteran's hearing loss without resorting to speculation. The Veteran reported experiencing tinnitus since 2013, but the examiner was again unable to provide an opinion without the valid pure tone test results. Initially, the Board finds that the Veteran currently has hearing loss within the meaning of VA regulations. Although the audiometric test results were invalid at the January 2014 examination, the April 2013 VA testing cited in that examination report clearly show that the Veteran has hearing loss as defined in 38 C.F.R. § 3.385. It noted moderate to severe SNHL at 250-8000 Hz in the right ear and moderately-severe to profound SNHL at 250-8000 Hz in the left ear. The first criterion for service connection has been met. The Board further finds that the Veteran's claimed noise exposure during service is consistent with his duties and circumstances of service as outlined in his personnel records. Although hearing loss is not shown in service, the Board finds that exposure to traumatic noise levels is consistent with the conditions of his service. As such, the second criterion for service connection has been met. Finally, the Board finds that based on the April 2013 opinion from the Veteran's health care provider, a nexus has been established between the Veteran's current hearing loss and the noise exposure in service. The criteria have been met, and service connection for bilateral hearing loss is established. Similarly, the Board notes that the Veteran has reported tinnitus since at least 2013. Although the April 2013 opinion does not specifically state that the Veteran's tinnitus is attributable to service, tinnitus is noted, and the context of this opinion indicates that the author intended to include tinnitus as a component of the hearing loss he relates to service. The Board finds that entitlement to service connection for tinnitus is also established. Increased Rating The Veteran contends that the initial 50 percent rating assigned to his service connected PTSD does not reflect the impairment that results from that disability. The record shows that entitlement to service connection for PTSD and a major depressive disorder was established in a March 2014 rating decision. A 50 percent rating was assigned, effective from April 16, 2013. The Veteran submitted a notice of disagreement with this evaluation, which initiated the current appeal. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In determining an initial rating, the entire record from the effective date of service connection to the present is of importance in determining the proper rating of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's PTSD and major depressive disorder are evaluated under the General Rating Formula for Mental Disorders. Under this formula, a 100 percent schedular (maximum) evaluation is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought process 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, or memory loss for names of close relatives, own occupation or own name. The only criteria for a total disability rating for any disability rated in accordance with the VA General Rating Formula for Mental Disorders are total occupational and social impairment. Sellers v. Principi, 372 F.3d 1318, 1324 (Fed. Cir. 2004) A 70 percent evaluation is merited for 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 that is intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a worklike setting), and an inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). The current 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Code 9411. The symptoms listed in the rating criteria for psychiatric disabilities are not exclusive. Instead, the level of impairment produced by all symptoms must be considered. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran was afforded a VA PTSD examination in January 2014. His diagnoses included PTSD and a major depressive disorder. The symptoms included recurrent experiencing of his trauma while both awake and asleep; a feeling that the world was a dangerous place; increased arousal in the form of hypervigilance and sleep pattern disturbance; avoidance of any stimuli that recalled the trauma; a depressed mood; loss of motivation; fatigue; and loss of interest. The Veteran had been married for 55 years. He lived with his wife and was active in church but had few friends. His hobbies were fishing and camping but he had not engaged in these activities since he became depressed. The Veteran had retired at age 65 but had been involved in volunteer work. His first PTSD treatment had occurred approximately two months earlier. Additional symptoms included irritable behavior and angry outbursts; exaggerated startle response and problems with concentration. There was also mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and obsessional rituals that interfered with routine activities. The Veteran also had unprovoked irritability without violence. The examiner opined that this was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. The examiner added that both disabilities contribute equally to social and avocational impairment. His occupation was not affected because he was retired, but there were effects on his volunteer activities. The Veteran underwent a private psychological evaluation in August 2016. He reported nightmares about two or three times a week about incidents in Vietnam. The Veteran would patrol his house after a nightmare, which caused sleep deprivation. He had night sweats due to his incredible anxiety and four or five panic attacks each day. The Veteran had ritualistic behavior such as repeatedly washing his hands or moving objects to assure they are placed symmetrically. He had suicidal ideations but no plans or attempts. During the day he had intrusive thoughts about his Vietnam experiences. The Veteran did not have any friends and spent the entire day alone with his wife. He did not like or trust people, had angry outbursts with his wife two or three times a week, and had hit her on some of these occasions. The Veteran had chronic and severe paranoia. He regularly experienced flashbacks three to four times a week. The examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas including work, family relations, judgment, thinking or mood. His deficiencies in judgment were that he slept with a loaded gun by his bed. Deficiencies in thinking included his belief that there were others who were going to harm him on a daily basis. His anxiety and depression were near continuous. The Veteran was unable to maintain relationships with others. These symptoms had been present since at least the year 2000, which was four years after he retired from work. The Board finds that the Veteran's symptoms more nearly resemble those that are productive of occupational and social impairment with deficiencies in most areas. The August 2016 examiner opined that the Veteran's disability was productive of occupational and social impairment with deficiencies in most areas, and provided many examples of the symptoms that result in that impairment. This level of impairment warrants a 70 percent rating. In contrast, the January 2014 examiner opined that the PTSD and depression were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. This level of impairment would merit a 30 percent rating. However, it should be noted that the January 2014 examiner also noted that the Veteran had symptoms such as obsessional rituals that interfered with routine activities, which is an example of a symptom commonly productive of occupational and social impairment with deficiencies in most areas. Furthermore, the August 2016 examiner stated that the symptoms productive of occupational and social impairment with deficiencies in most areas had been present since at least 2000. Bearing in mind that it is the level of impairment and not the list of symptoms that is the key factor, the Board finds that the Veteran's PTSD and depressive disorder have been productive of occupational and social impairment with deficiencies in most areas for the entire period on appeal, which merits a 70 percent rating from the initial date of service connection. 38 C.F.R. § 4.130, Code 9411. The Board has considered entitlement to a 100 percent rating for PTSD, but total occupational and social impairment has not been shown by the evidence. The Veteran continues to have a relationship with his wife and children, and he participates in volunteer work. Neither the January 2014 VA examiner nor the August 2016 private examiner found the Veteran to have total occupational and social impairment, and without that level of impairment a 100 percent scheduler rating may not be assigned. 38 C.F.R. § 4.130, Code 9411. TDIU The Veteran believes that his service connected PTSD prevents him from obtaining or maintaining gainful employment. TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service connected for PTSD which, as a result of this decision, is now evaluated as 70 percent disabling. Rating evaluations have yet to be assigned to the Veteran's hearing loss and tinnitus, but the 70 percent rating for PTSD is sufficient to meet the threshold percentage requirements for TDIU as set forth under 38 C.F.R. § 4.16(a). The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. See id. Thus, the central question is "whether the [V]eteran's service connected disabilities alone are of sufficient severity to produce unemployability," and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The January 2014 VA examiner did not offer an opinion as to whether or not the Veteran's PTSD precludes gainful employment. The examiner noted that the Veteran was retired, so that his disabilities did not affect his occupation. However, it was noted to affect his volunteer activities. The August 2016 private psychologist stated that it was highly unlikely that the Veteran would be able to adapt to a stressful circumstance such as a work setting. She opined that the Veteran's PTSD symptoms preclude him from obtaining and maintaining substantially gainful employment. She further opined that this had been the case since the year 2000. The Board finds that the foregoing evidence demonstrates the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially employment. The August 2016 examiner is the only medical professional to specifically address the Veteran's employability. She found that the Veteran is unemployable as a result of his service-connected PTSD. There is no opinion to the contrary, and TDIU is established. Regarding extraschedular consideration, the TDIU regulation only accounts for instances in which a veteran's combined disabilities establish total unemployability, i.e., a disability rating of 100 percent. Johnson v. McDonald, 762 F.3d 1362, 1366 (Fed. Cir. 2014). On the other hand, § 3.321(b)(1) performs a gap-filling function. Id. It accounts for situations in which a veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of a veteran's disabilities are nonetheless inadequately represented. Id. In this decision, the Veteran has been granted TDIU. As such, he is deemed to have total unemployability and there is no "gap to fill" by § 3.321(b). Therefore, the Board finds that further discussion of an extraschedular rating is not warranted. Earlier Effective Date The Veteran has asked for an effective date prior to April 16, 2013 for service connection for his PTSD. As a general rule, the effective date of an evaluation and award of VA disability compensation, based on an original claim, is the date of receipt of the claim or request or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). The effective date for direct service connection for disability compensation is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of claim, or date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(b)(2)(i). The Veteran was separated from service in July 1969. A review of the record fails to disclose a claim for service connection for PTSD that was received within a year of separation. Furthermore, the Veteran's claims file does not contain any communication from the Veteran that can be interpreted as an informal claim for PTSD until a VA Form 21-526 Veteran's Application for Compensation And/Or Pension was received on April 16, 2013. In fact, there does not appear to have been any communication received from the Veteran between 1976 and April 2013. Therefore, the Board concludes that as the initial claim for service connection for PTSD was received on April 16, 2013, and as this date is more than one year following discharge from service, then entitlement to an effective date before April 16, 2013 is not warranted. ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to an initial 70 percent rating for PTSD disorder is granted. Entitlement to TDIU due to service-connected disabilities is granted. Entitlement to an effective date prior to April 16, 2013, for the award of service connection for PTSD, is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs