Citation Nr: 1758042 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 10-42 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD) up to one-year prior to March 19, 2010. 2. Entitlement to an increased rating in excess of 70 percent for PTSD from March 19, 2010. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 22, 2016. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Watson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1976 to December 1984 and from April 1985 to September 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a ratings decision the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska issued in May 2010. In February 2012, the Veteran testified at a video hearing before a Veterans Law Judge (VLJ). A transcript is of record. In May 2014, the Board remanded the PTSD increase claim to develop it further by VA examinations and to associate additional records, and denied claims for service connection of sleep apnea and hypertension. In February 2016, the United States Court of Appeals for Veterans Claims (CAVC) vacated the Board's May 2014 decision and remanded to readjudicate it. In September 2016, the Board remanded the PTSD increase claim to readjuciate it after VA associated more records with the claims file. In October 2016, the RO granted and rated service connection for (1) sleep apnea at 50 percent, and (2) hypertension at 0 percent; both effective March 19, 2010. These ratings are now final. In April 2017, the RO issued a (1) rating decision to increase the PTSD rating to 70 percent, effective March 19, 2010 and (2) Supplemental Statement of the Case (SSOC) to deny a PTSD rating in excess of 70 percent from March 19, 2010. In June 2017, the RO issued a ratings decision to grant entitlement to individual unemployability (TDIU) effective December 22, 2016. In October 2017, the Veteran's accredited representative filed an appellate brief upon the PTSD increase claim. FINDINGS OF FACT 1. No medical evidence of record exists between March 19, 2009, the date one year before the PTSD claim for increase filing date, and March 19, 2010, the date of claim to increase the PTSD rating, to show that it was factually ascertainable that the Veteran's PTSD disability increased in severity. 2. From March 19, 2010, the Veteran's PTSD disability more nearly approximated occupational and social impairment with reduced reliability and productivity to the point of near unemployability, due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment and difficulty in establishing and maintaining effective work and social relationships. Total occupational and social impairment, due to the Veteran's PTSD symptoms was not shown. 3. From March 19, 2010, the Veteran's combined service-connected disabilities have been of such nature or severity so as to prevent him from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for PTSD for the period one year prior to March 19, 2010, have not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.400(o)(2), 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an increased rating in excess of 70 percent for PTSD from March 19, 2010 have not been met or approximated. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411 (2017). 3. The criteria to award of TDIU from March 19, 2010 have been met or approximated. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321(b)(1), 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327 (a) (2017). Here, the RO provided the Veteran VA examinations for PTSD in April 2010, June 2014 and February 2017, and multiple visits to the VA PTSD clinic in Nebraska, as reflected in medical notes in the intervening years. The examination reports and notes are thorough and supported by the evidence of record. The examination reports and notes discuss the clinical findings, treatment history, and the Veteran's reported symptoms. The examination reports also discussed the functional losses caused by the Veteran's disabilities. II. Legal and Regulatory Criteria to Increase Ratings Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology to the criteria set forth in the ratings schedule. The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 . The Board notes the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify"). III. PTSD Rating Principles The Veteran's PTSD is currently evaluated as 70 percent disabling under Diagnostic Code 9411. The Board deems this code most appropriate, primarily because it pertains specifically to the diagnosed disability in the Veteran's case. The Board can identify nothing in the evidence to suggest that another diagnostic code or codes would be more appropriate, and the Veteran has not requested that another diagnostic code be used. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2017). Diagnostic Code 9411 provides that a 70 percent rating is warranted where 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. The Federal Circuit has found that § 4.130 requires an ultimate factual conclusion as to the a veteran's level of impairment in "most areas" for a 70 percent rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, warrants the maximum, 100 percent disability rating. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition of similar type and degree that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-V (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5h ed.). Id. Additionally, a Global Assessment of Functioning (GAF) score is often used by treating examiners to reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996). GAF scores ranging between 61 and 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect 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). GAF scores ranging from 41 to 50 reflect 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). Scores ranging from 31 to 40 reflect 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 other children, is defiant at home, and is failing at school). See 38 C.F.R. § 4.130 [incorporating by reference VA's adoption of the DSM-V, for rating purposes]. a. Increased Rating for PTSD up to one year before March 19, 2010 The Veteran currently has a 10 percent disability rating for his PTSD prior to March 19, 2010, and a 70 percent rating for his PTSD from March 19, 2010, to present. The Veteran maintains that an increased rating in excess of 70 percent is warranted for the entire appeal period since filing his claim on March 19, 2010. The appeal period for increased ratings claims includes one year before filing the claim. For increased rating claims, an earlier effective date may be assigned when it is factually ascertainable that an increase in disability occurred and the claim for increase was received within one year from that date, but otherwise the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400 (o)(2) (2017). In September 2007, the RO granted service connection for PTSD and assigned an initial 10 percent rating, effective April 2, 2007. It became final. In March 2010, the RO issued a rating decision to increase the PTSD disability rating to 50 percent, effective March 19, 2010. In April 2017, the RO again increased the PTSD rating to 70 percent, effective March 19, 2010. That is the proper effective date to have increased the Veteran's PTSD rating to 70 percent, unless the Board factually ascertains an increase in disability up to one year prior to it, the date of claim. In May 2017, VA staff filed form 27-2840 to conclude that more medical records do not exist after reasonable efforts to obtain any that may exist. In this case, no medical evidence of record exists to show the disability increased factually between March 19, 2009, the date one year before the PTSD increase filing date, and March 19, 2010, the date of claim to increase the PTSD rating. There were no medical exams during that period to substantiate the claim, and no other medical or other evidence relevant to the claim is of record. In fact, the Veteran requested an examination to evaluate his condition when he filed to increase his PTSD rating on March 19, 2010. Therefore, the Board leaves the rating of 10 percent for March 19, 2009 to March 19, 2010 undisturbed. b. Increased Rating for PTSD from March 19, 2010 In order for a Veteran to receive a certain level PTSD disability rating, the Veteran should display certain symptoms (or others of similar severity, frequency, and duration) that lead to the requisite level of occupational and social impairment. The Board thus, must consider not only the Veteran's occupational and social impairment, but also the symptoms leading to that level of impairment. As always in increased ratings, where there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Again, Diagnostic Code 9411 evaluates PTSD. Having been awarded a 70 percent disability rating under that Code from March 19, 2010, the Board must analyze whether the Veteran's disability picture more nearly approximates the next higher 100 percent PTSD rating criteria. Distinguishing a 70 percent rating from a 100 percent rating largely rests upon finding symptoms leading beyond only partial occupational and social impairment. The criteria for a 100 percent rating are as follows: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The Veteran does not display symptoms necessary to substantiate a 100 percent PTSD rating. For example, the April 2010 VA examiner quoted the Veteran as stating "I dream of interrogations, it wakes me up and then I go have a drink." The examiner noted no hallucinations, or obsessive and ritualistic behavor; but did note panic attacks. Moreover, the Veteran displayed no homicidal or suidical thoughts; yet reported two minor fist fights as incidents of violence. Having habitually read in church, the Veteran reported he no longer does so because the appearance of the congregants causes him anxiety, as they increasingly resemble persons in his memories of his in-service stressor event. The Veteran went on to report hypervigilance and nightly disturbed sleep. Further, a July 2010 PTSD VA clinical note states he "reported that he has suffered from symptoms of insomnia, intrusive recollections, heightened anxiety and difficulty containing these symtoms..."and "...at times being irritable, however,...able to control that..." Thus, the Veteran does not display grossly inappropriate behavior, or pose a persistent threat to hurting himself or others. Moreover, the note explains "he continues to follow international affairs, as he finds it to be of interest," thus showing no gross impairment in thought processes. Physically, a November 2011 VA outpatient nursing note reports that he "walks without hesitation or loss of balance," thus showing an ability to perform activities of daily living. In December 2012, a VA examiner noted that the Veteran's neuropsychological testing for traumatic brain injury was unremarkable, noting his the Veteran's long diagnosed and treatment for PTSD. In July 2013, a VA psychiatrist noted that the Veteran's PTSD remains chronic and psychomotor activity remained in normal limits. In June 2014, a VA examiner noted he was able to interpret a proverb. In July 2015, a VA examiner's note showed the Veteran reporting symptoms of depressed mood and sleep disturbances. Similarly, the February 2017 VA examiner noted the Veteran continued to deny suicidal and homicidal ideation, past delusions, hallucinations, or obsessions; and she further noted the Veteran exercises daily in his home, but has daily panic attacks and anxiety, while continuing to experience sleep restlessness and fears retribution for what he did in military service. She also noted his appearance and hygiene were appropriate. Further, the February 2017 VA examiner noted that while the Veteran presented for continued sleep disturbance, his appearance, grooming and hygiene were good; and homicidal or suicidal ideation, again, was absent, among other symtoms typically associated with worsening PTSD. The Board has also notes the Veteran's GAF rating of 60 in January 2013, though not all examinations or notes assessed GAF. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination). No evidence of record shows the Veteran experiencing total occupational and social impairment due to PTSD alone, and therefore the Board does not further address a possible 100 percent disability rating for the Veteran's PTSD. Accordingly, the Board concludes that the criteria for a rating in excess of 70 percent for PTSD has not been met for the time period from March 19, 2010. See Fenderson v. West, 12 Vet. App. 119 (1999). c. Entitlement to TDIU The Board will consider total disability when any impairment of mind or body is present sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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, the disability shall be ratable at 60 percent or more, and 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 . For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) Disabilities resulting from common etiology or a single accident; (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) Multiple injuries incurred in action; or (5) Multiple disabilities incurred as a prisoner of war. See 38 C.F.R. § 4.16 The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. See 38 C.F.R. § 4.16(a). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. See 38 C.F.R. §§ 3.341(a), 4.19 (2014). Factors to consider are the veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). A high disability rating in itself recognizes that the impairment makes it difficult to obtain and keep employment. However, the question in a total rating case based upon individual unemployability due to service-connected disabilities is whether the veteran is capable of performing the physical and mental acts required by employment and not whether the veteran is, in fact, employed. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). It is established VA policy that all veterans unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration. The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto-related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Director, Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. d. Analysis - TDIU The Veteran met the schedular requirements for TDIU, effective from March 19, 2010, in a December 2016 rating decision by combining the following service-connected disabilities and corresponding ratings: post-traumatic stress disorder (PTSD), rated as 70 percent disabling; sleep apnea, rated as 50 percent disabling; bilateral hearing loss, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and hypertension, rated as 0 percent disabling. The pertinent question is whether the Veteran's service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment prior to December 22, 2016. The Board finds that they did. From March 19, 2010, the Veteran meets the TDIU schedular criteria under 38 C.F.R. § 4.16. The Veteran has one disability greater than 60 percent disabling because his PTSD disability is rated at 70 percent from March 19, 2010; and evidence of record shows him unemployable for the period running from March 19, 2010. Alternately, his combined disability rating totals at least 70 percent when combining at least one disability rated at least at 40 percent and another rated sufficiently to bring the combined total to at least 70 percent. For example, combining his 50 percent sleep apnea rating and 20 percent bilateral hearing loss, could result in TDIU from March 19, 2010. By contrast, no disability is rated sufficiently or could combine with others prior to March 19, 2010, to substantiate schedular TDIU. However, for any period on appeal, the Board can refer a veteran to the Director of Compensation and Pension Service to consider extra-schedular TDIU, who is unemployable by reason of service-connected disabilities, but who fails to meet these schedular percentage standards, in this case, for the period of up to one-year prior to the March 19, 2010 claim filing date. However, the Board need not refer the Veteran to extra-schedular TDIU consideration since both the Veteran and a VA examiner found the Veteran gainfully employed at the time of filing his claim to increase his PTSD rating. In contrast, no evidence of record shows him unemployable by reason of service-connected disabilities within one-year before March 19, 2010. The Veteran stated on his March 19, 2010 claim to increase his PTSD rating that "I miss work frequently because I do not want to be around people and I would rather be by myself." Yet, the Veteran reported that he last worked months later, on July 7, 2010, at Meyer Automotive after choosing to retire, fearful of being fired. See April 2017 VA Form 21-8940. Factually, on March 19, 2010, at the time he filed his PTSD increased rating claim, the Veteran was still gainfully employed, before choosing to unemploy himself later in July 2010. The April 2010 VA examiner noted the Veteran was still employed in autosales fulltime, and that three weeks absent from work in prior years was due to the Veteran's cardiac condition and repiratory infections. Moreover, the April 2010 examiner stated the Veteran reported he missed work 2-3 times per month due to PTSD symptoms, which furthermore did not cause total occupational and social impairment. These facts do not suggest the need to consider extraschedular TDIU prior to March 19, 2010. But PTSD symptoms are not the whole story. Although the Veteran applied for TDIU in April 2017 and the RO subsequently granted it effective December 22, 2016, the record indicates a number of service-connected disabilities that cumulatively prohibited him from substantial gainful employment before December 22, 2016. The Veteran stated on his April 2017 VA Form 21-8940 form that PTSD and sleep apnea forced him to quit working in July 2010. In August 2010, the Veteran informed a VA social service representative that he was unemployed. In September 2010, the Director of the PTSD VA clinic at Lincoln, Nebraska, submitted a letter to the Veteran's law firm stating "(i)t would be unlikely that he could sustain full-time employment at this time." And in March 2012, the same VA examiner opined by letter that the Veteran required increased medications to treat his chronic PTSD symptoms. By August 2012, the Veteran told his VA examiner that he wanted to work, to get "back in the game." And in April 2014, a polytrauma progress note shows the Veteran still unemployed and receiving Social Security Disability Income (SSDI). Finally, in May 2017, a VA examiner by addendum opined that the "Veteran would have significant difficulty making and maintaining work relationships and productive communication with co-workers and supervisors. His anxiety and sleep difficulties would make it difficult for him to focus on and complete tasks." On balance, the Veteran's disability picture appears to have remained relatively and reasonably consistent since March 19, 2010, in showing him medically unfit for employment. The Board finds the Veteran competent and credible to report his prolonged unemployment, and lends his statements weight in judging his claim. He generally complained of memory issues, concentration problems, anxiety, irritability and isolationist tendencies, all of which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Similarly, the Board finds the VA examiners and medical professionals competent to assess his symptoms, due to their experience and education, and to opine that they progressed since 2007 and then stabilized, rendering the Veteran unable to work full-time or gainfully when examined; and credible given their expertise in evaluating PTSD cases. Id. In totality, the Board finds the evidence shows the Veteran is and has been for years unable to secure or follow a substantially gainful occupation due to his service-connected disabilities since March 19, 2010, affording him the benefit of the doubt and finding the medical evidence supports his schedular TDIU. The ultimate authority to determine whether TDIU criteria have been met rests with the Board. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Accordingly, entitlement to TDIU is warranted from March 19, 2010, the effective date of the Veteran's 70 percent PTSD disability rating and service connection dates for other noted disabilities combining to establish schedular TDIU, including sleep apnea. 38 U.S.C.§ 5107(b). ORDER 1. Entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected PTSD disability within one year prior to March 19, 2010, is denied. 2. Entitlement to a disability rating in excess of 70 percent for the Veteran's service-connected PTSD disability from March 19, 2010, is denied. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to December 22, 2016, is granted effective March 19, 2010. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs