Citation Nr: 1722271 Decision Date: 06/15/17 Archive Date: 06/29/17 DOCKET NO. 12-16 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from September 7, 2010 to June 20, 2011. 2. Entitlement to a rating in excess of 50 percent for PTSD beginning September 1, 2011. 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service connected disabilities. REPRESENTATION Appellant represented by: Kathy Lieberman, Attorney WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel INTRODUCTION The Veteran had active military service from May 1970 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) from the February 2011 and December 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The Veteran appeared at a June 2013 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in July 2016 and was remanded for further development. Throughout the pendency of the appeal, the Veteran was granted a temporary total disability for his PTSD for the period of June 20, 2011 to September 1, 2011. In March 2017, the Veteran's representative requested a 30 day extension to review the Veteran's Social Security disability records and submit evidence and argument in support of the Veteran's claim. Later that month, the Veteran submitted an argument, with reference to the Veteran's Social Security disability records. The Board therefore finds that there is no prejudice to the Veteran in deciding his claim at this time. FINDINGS OF FACT 1. Prior to June 20, 2011, the Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity. 2. For the period beginning September 1, 2011, the Veteran's PTSD was manifested by no worse than occupational and social impairment with reduced reliability and productivity. 3. The evidence establishes that the Veteran's service connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to June 20, 2011, the criteria for a rating of 50 percent for PTSD (but no higher) have been met. 38 U.S.C.A. §§ 1115, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016). 2. Beginning September 1, 2011, the criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1115, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016). 2. The criteria for a TDIU have not been met. 38 U.S.C.A § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's appeal for a higher rating for a mental health disability arises from his disagreement with the initial rating awarded following the grant of service connection for that disability. Where the initial claim is one for service connection, once service connection has been granted, the claim has been substantiated. Therefore, the initial intended purpose of the notice has been fulfilled and additional VCAA notice under § 5103(a) is not required. Any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, once a notice of disagreement has been filed, for example, contesting a downstream issue such as the initial rating assigned to the disability, only the notice requirements for a rating decision and Statement of the Case described in 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision. 38 C.F.R. § 3.159(b)(3). Here, the RO provided the Veteran the required Statement of the Case in April 2012. The Statement of the Case cites the applicable statutes and regulations pertaining to his claim. Regarding the Veteran's claim for a TDIU, the Veteran received a VCAA letter in August 2016. As for the duty to assist, the Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file. Additionally, three VA examinations were scheduled in connection with the current claim. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Compliance with Prior Board Remands The Board observes that this case was previously remanded by the Board in July 2016. The purpose of this remand was to obtain Social Security disability records, outstanding VA treatment records, and for an examination to be scheduled. Upon remand, all of these directives occurred. The Board therefore finds that there was substantial compliance with the prior remand order, as is discussed more fully below, and the Board may continue with its determination. Stegall v. West, 11 Vet. App. 268 (1998). III. Other Due Process Considerations As noted in the Introduction, the Veteran was afforded a hearing before the undersigned VLJ in June 2013. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ asked the Veteran specific questions concerning the symptoms of and treatment for his PTSD. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim. In addition, the Veteran was assisted at the hearing by an accredited attorney. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). IV. Legal Criteria for Increased Ratings Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2016). The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 199 (1999). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. V. Legal Criteria for PTSD specifically The Veteran's PTSD is currently rated as 30 percent disabling prior to June 20, 2011 and 50 percent disabling beginning September 1, 2011. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this diagnostic code, 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; and difficulty in establishing and maintaining effective work and social relationships. Id. 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 work-like setting); and inability to establish and maintain effective relationships. Id. 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; and memory loss for names of close relatives, own occupation, or own name. Id. In order to be assigned a particular rating, a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The key element for a rating under the General Formula for Mental Disorders is the degree of social and occupational impairment caused by those symptoms. The record contains Global Assessment of Functioning (GAF) scores assigned by mental health professionals who have evaluated the Veteran. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed.) (DSM-IV). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by replacing references to DSM-IV with the fifth edition of the DSM (DSM-5). See 38 C.F.R. § 4.125, amended by 79 Fed. Reg. 45099 (effective Aug. 4, 2014). Although the DSM-5 no longer uses the GAF scale to assess functioning, the DSM-IV was in effect at the time the GAF scores of record were assigned. Therefore, the Board will consider the various GAF scores of record in evaluating the Veteran's occupational and social functioning. However, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is not determinative of the VA disability rating to be assigned. See VAOPGCREC 10-95, 60 Fed. Reg. 43186 (1995). As such, in evaluating the severity of mental disorders, the disability rating is to be based on all of the evidence that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126 (2016) (emphasis added). A GAF score of 51 to 60 is illustrative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 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). A GAF score of 31 to 40 is defined as some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant), or a major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score of 21 to 30 indicates 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 GAF score of 11 to 20 reflects some danger of hurting self or others (e.g., suicidal attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute). See DSM-IV. VI. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. PTSD Beginning September 7, 2010 In February 2011 the Veteran was granted an initial rating of 30 percent for his PTSD effective September 7, 2010. In August 2010, the Veteran was diagnosed with PTSD and began receiving psychiatric care at a VA outpatient clinic. An August 2010 Vet Center assessment stated that the Veteran's PTSD symptoms included depression, isolation, alienation, avoidance of feelings, rage, anxiety, sleep disturbances, intrusive thoughts, startled responses, eating changes, loss of motivation, nightmares, memory problems, and irritability. In September 2010, the Veteran told his VA psychiatrist that he had low mood, anhedonia, social isolation, and irritability since he left Vietnam. He stated that he self-medicated with alcohol, but denied that PTSD and depression problems caused any other limitations on his ability to work. The Veteran had a visible tremor in his jaw when discussing emotional issues and his mood was noted as "not good." The Veteran denied suicidal or homicidal ideations and was given a GAF score of 45, which as discussed above, indicates serious symptoms or any serious impairment in social, occupational, or school functioning. In an October 2010 Vet Center mental status evaluation, the Veteran's symptoms were noted to impact his sleep, involve anger, rage, frustration, memory problems, and focusing on tasks. The evaluation stated that the Veteran had disorganized thinking and sleep problems, and hears his name being called. However, although the Veteran was noted to be quite symptomatic, the treatment note indicated that his symptoms were improving. The Veteran was given a GAF score of 48. In February 2011, the Veteran underwent a VA PTSD examination. The examiner noted that the Veteran was having chronic difficulties with mood, primarily irritability, poor sleep, sadness, and nightmares of his combat trauma. He admitted to rare thoughts of suicide without definite plan or intent to harm himself. It was also noted that the Veteran socially isolates himself, avoids crowds, has occasional panic attacks when in crowds or driving his car in heavy traffic, and suffers from chronic sleep impairment. The examiner reported that the Veteran has a good relationship with his family although is irritable at times. The examiner stated that the Veteran's thought process was logical with normal communication and associations were intact. The Veteran denied hallucinations, delusions, obsessions or compulsions, and homicidal intent. The examiner stated that the Veteran's affect was judged to be one of mild anxiety. The February 2011 examination noted that the Veteran's PTSD symptoms included nightmares, flashbacks, recurrent intrusive distressing recollections, avoidance of activities and situations that might arouse recollections of trauma, markedly diminished interest in significant activities, and feelings of detachment or estrangement from others. The examiner stated that the Veteran's PTSD causes definite impairment in functional status, qualify of life, and employment and the Veteran has chronic daily definite emotional symptoms with nightmares of combat trauma since leaving Vietnam. The Veteran was also given a GAF score of 60, which is illustrative of moderate symptoms or moderate difficulty in social, occupational, or school functioning. Contrary to VA treatment notes from February 2011 stating that he has had rare thoughts of suicide, in both March and May 2011, the Veteran denied ever having any thoughts about death or about killing himself. The Board finds that for the period of September 7, 2010 to June 20, 2011, the Veteran's PTSD most approximates a 50 percent rating as a result of occupational and social impairment with reduced reliability and productivity due to symptoms comparable to flattened affect, memory problems, depression, impaired impulse control, difficulty in adapting to stressful and maintaining effect relationships, hypervigilance, flashbacks, and recurrent nightmares. Although there were rare complaints of suicidal ideation, a higher rating of 70 percent is not warranted as the Veteran denied homicidal ideation, obsessional rituals, illogical speech, near-continuous panic or depression affecting the ability to function independently, spatial disorientation, delusions, and neglect of personal hygiene. Further, it is not shown that he had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, or thinking. In fact, the Veteran has maintained family relations, displays a good attitude towards treatment, and has no indication of a thought disorder. Additionally, as previously noted, while GAF scores are not the sole basis for assigning a disability rating, they do provide a clinical indicator of a patient's functional ability and are an important consideration in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). The GAF scores assigned in September and October 2010 were 45 and 48, respectively, which reflect more serious difficulty functioning, although in February 2011 the Veteran's score was 60, which reflects moderate difficulty. As previously noted, GAF scores are not dispositive and the Board takes into account the entire disability picture when assigning a rating. In that regard, the Board finds the Veteran's symptoms, as documented in treatment records, provide more probative evidence to determine the Veteran's disability level than the assigned GAF scores. Thereby, a 50 percent rating, but no higher, is assigned for the period between September 7, 2010 and June 20, 2011. PTSD Beginning June 20, 2011 In a June 2011 VA treatment note, the Veteran denied any history of violence and his impulse control was noted as fair. In August 2011, it was noted that the Veteran became involved in a therapeutic fly fishing program involving fishing in a public community park and a cookout with other members of the program. The VA therapist observed that the Veteran demonstrated appropriate social skills, did not display extreme emotion such as depression, anxiety, or anger, appeared motivated and engaged, and was engaged as evidence by active participation to the best of his ability. Additionally, the therapist stated that the Veteran demonstrated proper adaptive or non-adaptive techniques as appropriate. Conversely, in September 2011, the Veteran's wife submitted a statement in support of her husband's claim stating that the Veteran has mood swings, no patience, and yells frequently. She also stated that her husband has unexplained anger outbursts. The Veteran's stepson also submitted a statement stating that the Veteran appears to not be getting much sleep because of his nightmares and that he thinks that the Veteran's depression is worse. Additionally, the Veteran's brother-in-law submitted a statement on the Veteran's behalf stating that the Veteran is extremely impatient and has frequent anger outbursts (yelling), appears to be withdrawn from his family, and depressed. Since September 2011, the record contains evidence of impaired impulse control, such as unprovoked periods or irritability and violence (such as throwing items on the floor). Additionally, it is stated throughout the record that the Veteran reports a low mood and irritability. In December 2011, the Veteran underwent another VA PTSD examination. The examiner discussed that the Veteran also suffers from depressive disorder that is secondary to his PTSD and was given a GAF score of 56. As discussed above, a GAF score of 56 is illustrative of moderate symptoms or moderate difficulty in social, occupational or school functioning. The examiner discussed that the Veteran has a depressed mood lasting more than half the day on an average of 3 days per week. Additionally, the Veteran experiences daily recurrent and intrusive distressing recollections of a traumatic event he experienced in Vietnam and has distressing dreams of this event an average of five times per week. The Veteran stated that he has difficulty staying asleep every night, irritability on a daily basis, and difficulty concentrating four to five times per week. Additionally, he reported being hypervigilant, avoiding activities, places, people, and emotions that arouse recollections of the traumatic event, markedly diminished interest in significant activities, and feelings of detachment from others. The Veteran reported good relationships with his family, with whom he lives with. The Veteran's PTSD was manifested by depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran denied suicidal or homicidal thoughts, plans, or intent, did not evidence impairment in judgment, and evidenced an ability to maintain minimal personal hygiene. The examiner stated that the Veteran's PTSD is manifested by occupational and social impairment with reduced reliability and productivity. In a September 2012 Vet Center treatment note, the Veteran reported a less depressed mood overall with minimal depressive symptoms and improved sleep with half as many nightmares per week. In November 2012, the Veteran reported mild depressive symptoms and some improvement in agitation and irritability. He reported less moodiness and a decrease in symptoms. The Veteran reported using techniques to monitor negative thought processes which slightly decreased the amount of time spent thinking about past traumatic events. In an August 2015 VA treatment note, the Veteran reported that he is doing fairly well, has improved depression, and minimal sleep intrusion with nightmares (one to two times a month). The doctor stated that there is overall improvement and the Veteran was in "really good spirits." However, in January 2016, the Veteran reported that his nightmares were worse and the inability to be outside due to the weather increased his anxiety. The Veteran submitted an affidavit in January 2016 stating that his PTSD has caused him to have frequent sudden outbursts of irritability, anger, and mood swings. In this affidavit, the Veteran stated that his irritability, anger, and mood swings have impacted his family and social relationships. Additionally, the veteran stated that he has difficulty handling stressful situations, experiences depression two or three times a week that results in isolation, has nightmares one to three times a week, and avoids crowds. Conversely, in February 2016 the Veteran stated that he is slightly more able to control his anger and has had only a few nightmares following days when he has had a particularly frustrating day. He stated that his mood was relatively good and has been engaged in leisure activities. The examiner stated that the Veteran's sleep is overall better. In June 2016, the Veteran reported improved irritability and that his nightmares were neither worse nor better. In January 2017, the Veteran underwent a final VA PTSD examination. The examiner characterized the Veteran's PTSD as having occupational and social impairment with reduced reliability and productivity. The Veteran stated that not much has changed in his social or family life since his previous examination. He stated that he tolerates family gatherings for 60 to 90 minutes at a time and has been able to maintain a satisfactory relationship with his wife and other family members. The Veteran stated that he has no close friends and prefers to be alone and spends most of his time at home caring for their animals, doing leather work, and watching television. The Veteran told the examiner that he did not have any temper outbursts at work, and that his temper outbursts are essentially focused on his wife. The Veteran was able to recite the traumatic events he experienced in Vietnam in a matter of fact manner without any great stress. He stated that most of his problems have to do with nightmares and that he only sometimes experiences anxiety. The Veteran expressed worrying about upcoming VA appointments. Additionally, the Veteran reported the following PTSD symptoms: avoidance of talking about the stressors (however, this symptom has improved as he has been able to talk with his wife about the stressors in Vietnam), exaggerated startle response occurring monthly, avoidance of crowds, nightmares occurring 12 times a month, chronic sleep problems, detachment, and irritability occurring 4-5 times per week. The January 2017 examiner concluded his examination report by finding that the Veteran is not a credible historian regarding his mental health symptoms and problems. The examiner discussed that the Veteran has told inconsistent stories to Social Security, a private vocational evaluator, and the VA regarding sleep problems, leisure interests, severity of symptoms, and the impact of his mental health symptoms on his occasional functioning. Therefore, based on the evidence of record, the Board finds that beginning September 1, 2011, the Veteran's PTSD most approximates a 50 percent rating, and no higher. The Veteran's PTSD symptoms have remained constant over the years, with slight improvement recently. A higher rating of 70 percent is not warranted as the Veteran has denied panic attacks, manic episodes, obsessions, compulsions, severe memory problems, frequent anxiety, traumatic brain injury, suicide attempts, and current intent to harm himself or others. Additionally, the January 2017 examiner stated that over the last several evaluations the Veteran expressed less anger, comfort with his anger level, an acceptable level of nightmares, improved mood, improved anxiety, and mostly improved sleep. Furthermore, the Veteran's most recent GAF score in December 2011 was 60, indicating moderate symptoms. The Board has considered the Veteran's family member's lay statements with regard to his claim and finds that these statements regarding the symptoms the Veteran experiences are competent evidence because this requires only personal knowledge. See 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, these statements are not competent evidence to identify a specific level of disability to the appropriate diagnostic codes as this requires specialized education, training or experience. See 38 C.F.R. § 3.159 (a). The Board finds that it is not shown that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, or thinking. Thereby, the Veteran's 50 percent rating for his PTSD beginning September 1, 2011 is continued. TDIU The Board finds that the Veteran's service connected disabilities do not preclude him from securing or following a substantially gainful occupation. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). It is the established policy of VA that all Veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disability or 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." See 38 C.F.R. §§ 3.340 (a)(1), 4.15. "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 v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a). TDIU is precluded for any period of gainful employment, which is generally defined as annual earnings above the poverty threshold. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (proof of unemployment is necessary to raise a TDIU claim). Marginal employment is found whenever the Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census as the poverty threshold for one person. However, 38 C.F.R. § 4.16 further provides an exception to the income limitation regarding employment in a protected environment, such as family business or sheltered workplace, on a facts found basis. Id. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether his or her service-connected disabilities, alone, are of sufficient severity to produce unemployability. Factors to be considered are the Veteran's "education, employment history and vocational attainment." See 38 C.F.R. § 4.16(b). The Veteran asserts that he is unemployable as a direct result of his service connected disabilities and mainly his mental health disability. The Board notes that the Veteran is also service-connected for bilateral hearing loss, rated as 30 percent disabling; diabetes mellitus, rated as 20 percent disabling; and tinnitus, rated as 10 percent disabling. During the Veteran's October 2016 hearing loss and tinnitus VA examination, the examiner stated that the Veteran's hearing loss impacts his ability to hear his wife and hear while there is other noise. The examiner also stated that the Veteran's tinnitus causes an annoying sound and affects his ability to hear, concentrate, and sleep. The Veteran stated in his January 2016 affidavit that his hearing loss and tinnitus make understanding conversations difficult, especially when someone is speaking quickly. However, the Veteran has not asserted that he cannot understand conversations, only that it can be challenging. For entitlement to a TDIU, the issue is not whether the Veteran is unemployed or has difficulty finding employment, but rather, whether the Veteran is capable of performing acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) Additionally, the Veteran has not asserted, nor does the evidence reflect, that his diabetes mellitus has a functional impact on his employability. The Veteran finished high school and later obtained a 2 year technical degree in diesel mechanics. From 1981 to 2005, the Veteran worked as a diesel mechanic. This job required much skill and a heavy level of physical demand. Following this job, the Veteran began working as a satellite TV installer in 2009. In August 2009, he fell off of a ladder and injured his neck and back. As a result of this injury and subsequent nonservice-connected back and neck problems, the Veteran left the workforce. Throughout the record the Veteran has stated that he did not leave the workforce due to his mental problems. Additionally, the Veteran is currently in receipt of Social Security disability as a result of his back and neck injuries. Pursuant to 38 C.F.R. § 4.19, neither non-service connected disabilities nor advancing age may be considered when determining entitlement to a TDIU. Therefore, the Board finds the Veteran's receipt of Social Security disability benefits irrelevant for the purposes of determining entitlement to a TDIU. During the Veteran's December 2011 VA examination, the examiner stated that the Veteran's PTSD and depressive disorder combined do not preclude his ability to maintain substantial, gainful employment. Instead, the examiner noted that these mental health disabilities only result in reduced reliability and productivity. Furthermore, the Veteran stated that his recurrent intrusive distressing recollections and dreams about the traumatic event he experienced in Vietnam occurred at about the same frequency and severity throughout his working career. In October 2016, the Veteran submitted a private vocational assessment in support of his argument for entitlement to a TDIU. The assessment stated that for half of each month, the Veteran is not able to do "anything much" because of emotional restrictions caused by his PTSD. On these days, the Veteran stated that he does not go far from his home. The assessment stated that as a result of the Veteran's inability to "do anything on a regular and consistent basis" he could not perform even "a simple job." The Veteran reported that his emotional disability would cause him to be absent from any job more often than an employer would tolerate. The assessment discussed the Veteran's VA examinations and VA treatment notes, similarly discussed above, and focused on the Veteran's depressed mood, nightmares, and anger issues. The assessment ultimately opined that the Veteran is precluded from securing and following a substantially gainful occupation due to his reduced reliability and productivity caused by his PTSD. Furthermore, the assessment stated that there are no jobs in the local or national economies that the Veteran is able to perform. However, in the Veteran's January 2017 VA examination report, the examiner stated that the Veteran denied that any mental health problems ever interfered significantly with his ability to work. In fact, the examiner opined that there are not many functional limitations that apply to the Veteran as a result of his mental health disabilities. The examiner stated that although the Veteran would work better mostly alone, the Veteran has demonstrated an ability to work with others for over 20 years even when his PTSD symptoms were present. Additionally, the examiner does not believe that the Veteran's sleep problems would cause any functional limitations and stated that the Veteran's descriptions of his irritability seem to be limited only to his wife and therefore would not result in any functional limitations in the workplace. The January 2017 examiner disagreed with the October 2016 vocational assessment and stated that the assessment appears to only look at problematic times in recent years and discounted the most recent psychiatric evaluations that indicate the Veteran's stability and improvement of PTSD and depression symptoms. The determination of whether a veteran is employable is a legal determination, rather than a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that "applicable regulations place responsibility for the ultimate TDIU determination on the VA [adjudicator], not a medical examiner."). The Board finds the January 2017 VA examination more probative than the October 2016 vocational assessment as the VA examination opinion more accurately reflects the evidence of record (the Veteran was able to work prior to his back and neck injury while he was symptomatic of PTSD and improvement and stabilization of the Veteran's mental health disabilities). Additionally, the Veteran has not demonstrated that he is incapable of either sedentary or physical work as a result of his service connected disabilities. For the foregoing reasons, the Board finds that the Veteran's service connected disabilities do not preclude him from sustaining or following substantial gainful employment. Therefore, entitlement to a TDIU is denied. Other Considerations Additionally, the Board has considered the possibility of staged ratings under Fenderson, but concludes that the evidence of record does not establish additional, distinct time periods in which the issue on appeal resulted in symptoms that would warrant staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Although the Veteran's symptoms have fluctuated during the period on appeal, the evidence does not demonstrate separate, distinct time periods where the Veteran's symptoms would warrant a rating in excess of 50 percent (other than the previous grant of a 100 percent rating for the Veteran's period of hospitalization). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. See 38 C.F.R. § 4.1. The Board notes that in exceptional cases where evaluations provided by the Rating Schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's PTSD. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the Rating Schedule would not adequately compensate the Veteran for PTSD. Hence, referral for consideration of an extraschedular rating for either period of time discussed above is not warranted. ORDER 1. Prior to June 20, 2011, entitlement to an initial rating of 50 percent for service connected posttraumatic stress disorder (PTSD) is granted. 2. Beginning September 1, 2011, entitlement to a rating in excess of 50 percent for service connected posttraumatic stress disorder (PTSD) is denied. 3. Entitlement to a TDIU is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs