Citation Nr: 1754280 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 09-15 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent from January 10, 2006 to February 9, 2012, for posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 through December 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in December 2013. A transcript of the hearing is of record. In a July 2014 decision, the Board denied the claim for entitlement to an increased rating for PTSD and depressive disorder rated as 30 percent, effective January 10, 2006; 50 percent, effective April 18, 2011; 70 percent, effective February 10, 2012; 100 percent, effective June 20, 2012; 70 percent, effective August 1, 2012; 100 percent, effective January 15, 2013; and 70 percent, effective March 1, 2013. At that time, the Board denied an increased rating for PTSD during each time period. The Veteran appealed the Board's July 2014 decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2014 Order, the Court vacated, in part, the July 2014 Board decision, and remanded the matter to the Board for development consistent with a December 2014 Joint Motion for Partial Remand (JMPR). In its December 2014 Order, the Court noted that the Veteran was not appealing the denial of his claim for an increased rating for the time periods from February 10, 2012 forward. In August 2015, the Board issued another decision denying the Veteran's claims for entitlement to an increased rating for PTSD with depression greater than 30 percent through April 17, 2011, and greater than 50 percent from April 18, 2011 to February 9, 2012. In an April 2016 Order, the Court granted a Joint Motion for Remand (JMR), vacating the Board's August 2015 decision and remanding the issue to the Board for additional reasons and bases consistent with the JMR. In September 2016, the Board issued another decision granting the Veteran's claim for entitlement to an increased rating for PTSD with depression at 50 percent, but no greater, from January 10, 2006 to April 17, 2011, and denying the Veteran's claim for an increased rating for PTSD with depression greater than 50 percent from April 18, 2011 to February 10, 2012. In a June 2017 Order, the Court vacated, in part, the September 2016 Board decision, and remanded the matter to the Board for development consistent with a June 2017 JMPR. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2002). FINDINGS OF FACT 1. From January 10, 2006, to February 9, 2012, the Veteran's service-connected PTSD and depression was reasonably shown to have been manifested by symptoms productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood; total occupational and social impairment was not shown. 2. The evidence of record reflects that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 70 percent, but no greater, for PTSD and depression from January 10, 2006, to February 9, 2012, have been met. 38 U.S.C. §§ 1155, 5107 (2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Codes 9434-9411 (2017). 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Increased Rating 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 (2017). The Rating Schedule is primarily a guide in the evaluation of disability 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21 (2017); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigned staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130 (2017). 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. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); see also Sellers v. Principi, 371 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan, 16 Vet. App. 442. Entitlement to a specific disability rating, however, requires "sufficient symptoms of the kind listed in the [relevant rating] requirements, or others of similar severity, frequency [,] or duration." Vazquez-Claudio, 713 F.3d 118. "Although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of [occupational and social] impairment." Id. Pursuant to Diagnostic Code 9411, PTSD is rated 70 percent disabling when there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A maximum 100 percent evaluation is for application 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 evaluating the evidence, the Board has considered the various Global Assessment of Functioning (GAF) scores that clinicians have assigned. 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); Carpenter v. Brown, 8 Vet. App. 240 (1995). The Board also notes, however, that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). A GAF score of 61-70 reflects 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 GAF score of 51-60 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 peers or co-workers). A GAF score of 41-50 reflects 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 31-40 reveals some impairment in reality testing or communication (e.g., speech is at times illogical, obscure or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). DSM-IV at 46-47. VA treatment records from January 2006 through February 2012 reflect diagnoses of and treatment for PTSD and depression. A January 2006 treatment record noted the Veteran's reports of sleep disturbance, hypervigilance, occasional disturbing dreams, high emotional lability, irritability and anger, flashbacks, and physical outbursts. Mental status examination showed the Veteran to have appropriate grooming and dress, and good hygiene. The Veteran was fully oriented with intact cognitive functioning. There was no evidence of delusions, hallucinations, tangential or circumstantial speech, loose associations, flight of ideas, or grandiosity. Memory was intact, although the Veteran was somewhat absent-minded. Judgement was good and insight was fair. Mood was dysthymic and pessimistic, and affect was appropriate. There was occasional moderate suicidal ideation with no intent. There was no history of suicide attempts. Speech was normal. The diagnoses were chronic PTSD and moderate depression, and a GAF score of 50 was assigned. In March 2008, the Veteran underwent a VA examination. The Veteran reported irritability and short temper over minor matters with difficulty expressing his emotions which caused frequent breakdowns in his relationships. He complained of sleep problems, nightmares once per week, daily intrusive recollections, significant survivor guilt, and emotional and psychologic reactivity to triggers. He expressed difficulty controlling his temper and trouble with concentration. He indicated that he spent at least two hours per day alone due to high levels of irritability, and that he avoided fights with others. He described variability of mood and denied feelings of hopelessness or worthlessness. He denied suicidal and homicidal ideation. The Veteran reported that his relationship with his wife of 20 years was "rocky" and noted that they had separated several times. He stated that he last worked in 2003, and that he lost his business and his house after he formed a blood clot in his legs and was unable to work. He noted that he spent his time collecting model trains and fishing in the summer. He indicated that he had a limited number of friends and was not involved in community events. Mental status examination revealed the Veteran to be clean and casually dressed. Eye contact was good and speech was fluent with intact syntax and grammar. He had no difficulty communicating with the examiner but did have difficulty recalling all aspects of trauma, which he found very difficult to discuss. There was no evidence of psychosis and psychomotor behavior was normal. Mood was mildly dysthymic and affect was irritable. The Veteran denied suicidal and homicidal ideation. This diagnosis was mild to moderate PTSD, and a GAF score of 60 was assigned. In the course of a June 2008 VA examination, the Veteran reported symptoms which included irritability and short temper with difficulty expressing his emotions, which caused frequent breakdowns in his relationships. He described his marriage as "rocky." He added that he had few friends, spent his time in his shed with his model trains, and described his moods as being "up and down." The examiner commented that the Veteran described mild to moderate signs of PTSD. A GAF score of 60 was provided. In July 2008, the Veteran underwent another VA examination. He reported symptoms of depression a couple of times per week, which lasted for a day or two. He also noted poor appetite and difficulty enjoying activities. He denied having felt suicidal in the prior five years. The examiner noted that the Veteran's symptoms included re-experiencing, avoidance symptoms, and hyperarousal. The Veteran reported that he lived with his wife, and that this was his third marriage. He relayed that his divorce from his second wife was caused by depression and mood swings. He noted that he had two children from his second marriage, and that he still had a relationship with them. He noted problems in his current marriage, such as control difficulties and problems with emotions. Socially, he denied having any friends. He said that he enjoyed hobbies of collecting trains and working on his Volkswagen. He reported that he was not working, although he noted working one day per week at a hardware store with no difficulties in terms of disciplinary actions or missed time from work due to mental health difficulties. He last worked full-time in 2003, which he quit due to health problems. The diagnoses were mild to moderate PTSD and depressive disorder secondary to PTSD. A GAF score of 55 was assigned. A June 2009 VA treatment record indicated that the Veteran reported deterioration in mental health over the prior five years. He indicated experiencing irritation and depression and a recurrence of nightmares. Mental status examination showed the Veteran to have appropriate appearance with good grooming and hygiene. Memory and cognitive function were intact. Judgement and insight were good. Mood was frustrated with congruent affect. Speech was normal. The Veteran denied suicidal and homicidal ideation. The diagnosis was PTSD, and a GAF score of 55 was assigned. An April 2010 treatment record noted the Veteran's reports of inability to calm down, mood swings, sleep disturbances, checking things, inability to control thoughts, and difficulty controlling anger. He reported that anger, sleep disturbance and hypervigilance were his most distressing symptoms. He also became tearful during the evaluation. He described two flashbacks in the prior month with loss of orientation to place and time; intense psychological reaction to trauma-related triggers; avoidance of trauma-related stimuli; avoidance of crowds; feeling detached and estranged from others; loss of interest in activities; irritability and anger, such as yelling and throwing things and feeling "out of control;" hypervigilance; and exaggerated startle response. He stated that he lived with his wife of 23 years, and that his stepson lived in a converted barn on the same property. He described difficulty getting along with his stepson. The Veteran said that he had three friends that he talked with by phone, but denied attending social activities. He indicated that his relationship with his wife was "rocky" with a history of some separations. He noted that his oldest daughter was his best confidant and that they spoke twice per week, but that she lived in San Diego. He noted that he worked small maintenance jobs two to three times per month for "fishing money" and that he last worked in 2003. He stated that he enjoyed collecting model trains and enjoyed the "detail work" of constructing and painting the mini-landscape features for the train set. He reported that his garage workshop was his sanctuary and that he liked to spend time alone outdoors fly fishing, gardening, and boating. He denied a history of suicide attempts and self-harming behaviors. Mental status examination showed appropriate grooming and dress with normal motor activity. Speech was normal, mood was dysphoric, and affect was appropriate with good range but tearful at times. Cognition was intact with no delusions or evidence of formal thought disorder. Judgment was fair and insight was intact. The Veteran denied suicidal and homicidal ideation with no recent history of violence. He was motivated to curtail anger and prevent aggressive behavior. The diagnoses were chronic moderate PTSD and rule out major depressive disorder. A GAF score of 60 was assigned. VA treatment records from May 2010 reveal symptoms of anger, flashbacks, feeling detached and estranged from others, feeling no emotions or intimacy for others, irritability, suspicion, verbal aggression, and social isolation. In particular, he described struggling with feeling intimacy towards his wife and children. He also reported feeling "out of control," having trouble discussing war-time experiences, and panic and violent nightmares in response to war-time memories. Mental status examination showed the Veteran to be fully alert and oriented. He was casually dressed and appropriately groomed. Thought processes were logical and goal-directed with no evidence of formal thought disorder. Affect was broad. The diagnoses were PTSD and depressive disorder. An August 2010 record reflected that the Veteran reported experiencing sleep disturbance with hyperarousal and checking behaviors, intrusive memories of Vietnam, and anger with his primary support system. A September 2010 VA treatment record noted the Veteran's reports of hyperarousal, indiscriminate anger without violence, emotional numbing, claustrophobia, and fearfulness and avoidance of crowds. In October 2010, he denied thoughts of harming himself, but reported that he was either "totally depressed or totally out of control and angry." He noted experiencing a short temper and road rage. A December 2010 VA treatment record noted the Veteran's symptoms of irritability and anxiety with hopeless thoughts of improving symptoms. He noted a desire to find a few friends who would provide a social outlet and continue building family relationships. Mental status examination showed the Veteran to be fully oriented, anxious, and avoidant. There was no suicidal or homicidal ideation. A later December 2010 record reflected that the Veteran was feeling so "lost and hopeless" that he considered checking himself into inpatient treatment to get some relief. A February 2011 VA treatment record noted the Veteran's complaints of depression and nightmares with difficulty discussing Vietnam-related experiences. He expressed concern that he may not be as close with his daughter as he thought he was, although he expressed optimism for opportunities to connect with her in the future. Mental status examination showed the Veteran to be fully oriented with depressed and minimally reactive affect. He denied suicidal thoughts but reported increased intrusive memories and nightmares. In April 2011, the Veteran underwent another VA examination. The Veteran reported depressive symptoms including dysphoric mood, insomnia, mood problems, difficulty completing projects, procrastination, and decreased interest in sex. He also noted difficulty dealing with people and temper problems. Symptoms were noted to include depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment in short and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The diagnoses were PTSD and major depressive disorder, and a GAF score of 56 was assigned. The examiner found that the Veteran's PTSD and depression resulted in 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. According to the Veteran, his difficulties being around other people significantly impacted his work functioning. In an April 2011 statement, the Veteran's wife reported that the Veteran experienced nightmares and sleep disturbances as well as exaggerated startle response and hypervigilance. She also described flashbacks and stated that the Veteran "had threatened bodily harm when he was at the peak of his alert to family members and her." She acknowledged that he had never struck anyone, but that she occasionally feared that he would. She reported that the Veteran experienced depression and had threatened suicide more than once. She stated that the Veteran self-medicated with drugs and alcohol over the years, but that he had been sober since approximately 2007. She noted instances when the Veteran was "very loopy, out of control, his brain was not functioning" which she attributed to him taking too many pain pills or sleeping pills. She described "enormous" mood swings from being happy one moment to depressed, angry, and ready to hurt someone the next. She indicated that he sometimes did not make sense, and that his communication skills were impaired. She reported that he went through periods where he did not take care of himself, such as not putting on a clean shirt or not cleaning up after himself when making a sandwich. She stated that the Veteran experienced exaggerated startle response and had trouble dealing with stressful situations. She noted that he had panic attacks four to five times a month and that he did not have friends to engage socially with, noting that he did not seem to be able to maintain relationships with his mood swings. A February 2012 VA treatment record noted the Veteran's report that "I just need to get working on things. I can barely stand it anymore. I jump at the slightest sound and then have to go check the doors and patio. I thought I might want to do the Roseburg PTSD program but I don't think that more intensive symptoms management is going to work. I am really ready to put a lid on things." The note explained that since the Veteran's previous visit he "really feels like things took a turn for the worse when he quit his 70 hour/week job. Since then and since having some exposure therapy through the VA in Portland, he feels like things have spiraled out of control...He states he didn't sleep more than 4 hours/night. He was hyperaroused and vigilant most of the time, he could only go to gatherings involving the Band of Brothers, and otherwise he avoided all people." His trip to California in December turned into a disaster and he had to come home. The Veteran stated that "there was just too much coming and going and people and I couldn't handle it." The Veteran reported that he did not think that the medications were working, but he did not want to change at that point. He denied suicidal ideation. The Veteran also reported an anxiety level of 4-5 out of 10 most of the time and higher when he was in crowds. His PTSD was described as "severe" and a GAF score of 48 was assessed. During his December 2013 hearing before the Board, the Veteran reported that he experienced suicidal feelings since 2005, and that he self-medicated with alcohol until he stopped drinking in January 2006. In a May 2015 letter, a private psychologist opined that from at least 2006, the Veteran's PTSD and depressive disorder caused him to have "severe" limitations of social and occupational functioning based upon symptoms of "severe intrusion, avoidance, and arousal symptoms..." as well as nearly continuous flashbacks and depression affecting his ability to function; nearly continuous irritability and profound and uncontrollable anger; difficulty adapting to stressful circumstances; suicidal ideation with no plan; and inability to maintain effective work and social relationships. The psychologist cited to many of the VA medical records discussed above, and also to records dated after the current periods considered herein. He also conducted an examination via telephone and reviewed the Veteran's claims file. After thorough consideration of the evidence of record, the Board concludes that a 70 percent disability rating, but no greater, is warranted from January 10, 2006 to February 9, 2012. As noted above, GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter, 8 Vet. App. at 242. The Veteran's GAF scores of 48 and 50 show serious symptoms or any serious impairment in social, occupational, or school functioning. The Veteran's GAF scores of 55, 57, and 60 show moderate symptoms or moderate difficulty in social, occupational, or school functioning. See DSM-IV at 46-47. Although GAF scores are important in evaluating mental disorders, the Board must consider all pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. See Carpenter, 8 Vet. App. at 242. Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered but is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126 (2017); VAOPGCPREC 10-5, 60 Fed. Reg. 43186 (1995). With consideration of the entire record, the Board finds that the evidence more nearly approximates the criteria for the next higher disability rating of 70 percent from January 10, 2006, to February 9, 2012. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). In that regard, the evidence shows that the Veteran experienced depression; irritable affect; severe mood swings; difficulty controlling anger; severe sleep impairment; irritability with physical outbursts; short temper; social isolation with few, if any, friends; strained relationships with his wife and stepson; suicidal ideation; difficulty adapting to stressful circumstances; intermittently illogical, obscure, or irrelevant speech; and panic attacks. Although not all of the criteria for a 70 percent rating have been shown, the criteria are simply guidelines for determining whether the Veteran meets the dominant criteria. The dominant criteria for a 70 percent evaluation are occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. In this case, the Board finds that the evidence of record demonstrates that this level of functional impairment was met between January 10, 2006 and February 9, 2012. Accordingly, based on all the evidence of record, the manifestations of the Veteran's psychiatric disability meet the criteria contemplated for a 70 percent evaluation under the provisions of Diagnostic Code 9440. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). III. TDIU Entitlement to total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Where a veteran (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirements in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to TDIU. Id. A TDIU claim is not raised unless the Roberson requirements are met. Jackson v. Shinseki, 587 F. 3d 1106 (Fed. Cir. 2009). Under the applicable regulations, a TDIU may be granted only when it is established that the service-connected disability is so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Under 38 C.F.R. § 4.16, if there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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 Board has granted herein a 70 percent evaluation for the Veteran's PTSD from January 10, 2006, to February 9, 2012. The Board also notes that the Veteran is rated for PTSD at 10 percent from June 1, 1981, 70 percent from February 10, 2012, 100 percent from June 20, 2012, 70 percent from August 1, 2012, 100 percent from January 15, 2013, and 70 percent from March 1, 2013. In addition, the Veteran is service-connected for left knee status post medial meniscectomy with degenerative joint disease rated at 10 percent; tinnitus associated with bilateral hearing loss rated at 10 percent; bilateral hearing loss rated noncompensable from March 29, 1977, and 10 percent from October 4, 2004; shell fragment wound scar, right forearm, rated noncompensable; shell fragment wound scar, right thigh, rated noncompensable, and shell fragment wound scar, neck, rated noncompensable. He is, thus, eligible for consideration of a TDIU on a schedular basis from January 10, 2006. VA's General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In discussing the unemployability criteria, the Court, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated in essence that the unemployability question, i.e., the ability or inability to engage in substantial gainful activity, must be looked at in a practical manner, and that the thrust of the inquiry was whether a particular job was realistically within the capabilities, both physical and mental, of the Veteran involved. The Veteran asserts in his December 2012 TDIU claim that his knee disability and PTSD make him unemployable. He last worked full-time in 2007. The Veteran completed two years of college. In an April 2011 mental VA examination, the examiner noted that the Veteran's PTSD impacted his ability to work. The Veteran stated that he had difficulties being around other people which significantly impacted his work functioning. He also faced geographical barriers and no recent work history that impacted his work functioning (in other words, not all of his work difficulties could be attributed to problems being around others). In a September 2011 knee VA examination, the examiner stated that the Veteran's knee condition made the Veteran unable to stand or walk more than five minutes. He took narcotics daily. In a March 2013 mental VA examination, the examiner stated that the Veteran appeared to have moderate impairment in social functioning and would likely have the same level of impairment if employed. In a January 2015 knee VA examination, the examiner opined that no physical labor would be tolerated, but sedentary employment was within normal limits. In a January 2015 mental VA examination, the examiner opined that employment options would need to allow the Veteran to work independently in a low stress environment that would not require him to provide customer service. In May 2015, the Veteran was interviewed by a private psychologist who opined that the Veteran's service-connected PTSD and concomitant major depressive disorder imposed very severe limitation of social and occupational functioning since at least 2006 and that these limitations of functioning rendered him incapable of securing or following substantially gainful occupation since 2006. In an August 2017 statement, the Veteran reported that he had not worked in any capacity since 2008, where he worked as a handyman. The Veteran stated that he quit because he could not handle being around others. In a September 2017, private vocational assessment, the physician noted that the Veteran last worked full time in 2001. The Veteran worked part-time between 2007 and 2008. The physician opined that due to the Veteran's service-connected disabilities, it was at least as likely as not that the Veteran was unable to secure and follow substantially gainful employment since 2006 when his symptoms became severe and continuing. The physician reasoned that the Veteran suffered from significant difficulty with socialization, marked defects in concentration, severe fatigue, frequent panic attacks, depressive episodes, and needs for unscheduled breaks because of the need to lie down. In October 2017, a VA opinion was provided regarding the Veteran's ability to maintain substantially gainful employment. The examiner stated that the Veteran last worked in 2007 as a property manager and was unable to walk grounds and climb ladders or do lifting. The knee limited this aspect of his work. The desk position part of his work was not limited and therefore it was at least as likely as not that the Veteran could be employed in sedentary employment; the left knee would not limit this. The examiner stated that as a property manager, the Veteran did not stop working because of desk work. In an October 2017 addendum opinion, the VA examiner stated that the Veteran was previously able to hold gainful employment with the help of his business partner that allowed him to avoid interacting with many others. He appeared able to maintain gainful employment; however, the PTSD would cause the Veteran to have moderate difficulty being around others in a work setting. He would require loosely supervised employment that would allow him to work independently away from others. He would likely have marked difficulty maintaining customer service or sales-type jobs. In summary, there are professional opinions that weigh both in favor and against the claim for unemployability benefits. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence as a whole shows that the Veteran is unable to perform gainful employment due to service-connected disability. Specifically, the Veteran's employment history shows that he is not able to maintain a job because of his mental disability and knee disorder. Thus, the Board finds that the Veteran's service-connected PTSD and knee disorder preclude him from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. The Board again notes that the AOJ will set an effective date for the grant of a TDIU after determining the date on which the Veteran was last able to secure or follow a substantially gainful occupation. This preserves the appellant's right to appeal the effective date awarded by the AOJ. ORDER 1. Entitlement to an increased rating of 70 percent from January 10, 2006 to February 9, 2012, for posttraumatic stress disorder (PTSD) and depression is granted. 2. Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs