Citation Nr: 1801948 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 10-01 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than December 20, 2010, for a 70 percent rating for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than December 20, 2010, for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran had active service from August 1967 to September 1976. His awards and decorations include the Combat Action Ribbon and two Purple Heart Medals. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted an increased rating of 70 percent for PTSD and granted a TDIU from December 20, 2010 (receipt of the claims for an increased rating). The Veteran timely appealed the effective dates assigned in connection with the grants of an increased rating for PTSD and of TDIU. The Board additionally notes that this appeal also arises from a perfected appeal of a February 2009 rating decision, which denied service connection for hearing loss, tinnitus, a skin disability, and gunshot wounds of the neck and left lower extremity. A March 2015 rating decision granted service connection for right ear hearing loss and tinnitus, implementing the Board's October 2014 decision. In an August 2015 rating decision, the RO granted service connection for the remaining disabilities with the exception of pain and neuropathy in the lower extremities (previously characterized as gunshot wound to the left lower extremity only), which was denied in a May 2016 Board decision. The claim for service connection for a skin disability was also denied in an April 2017 Board decision. As such, these issues are no longer before the Board. In May 2016, the Board remanded the claims for additional development. It is now returned to the Board for further appellate review. Also, as noted in the May 2016 Remand, the Veteran did not file a timely substantive appeal following the issuance of that statement of the case as to the claim for an earlier effective date for erectile dysfunction and special monthly compensation due to the loss of a creative organ, thus, the Board does not have jurisdiction over these issues. Finally, the Board notes that after the AOJ's last adjudication of the claim and after certification of the appeal to the Board, additional evidence has been associated with the record, but has not been considered by the RO in conjunction with the current appeal. However, the evidence is not relevant to the earlier effective date claims and the benefit sought is being granted in full, so a remand for initial RO review of this evidence is unnecessary. FINDINGS OF FACT 1. The February 2009 rating decision granting service connection for PTSD and assigning an initial 30 percent rating did not become final, as new and material evidence was received within the one year period to appeal the initial rating assigned and continued to be received until the Veteran filed what was deemed a claim for an increased rating which was granted in the September 2011 decision on appeal; the criteria for a 70 percent rating were more nearly approximated from the November 29, 2007 date of claim for service connection for PTSD. 2. The February 2009 rating decision that implicitly denied TDIU (by denying an initial rating higher than 30 percent for TDIU) did not become final, as new and material evidence was received within the one year period to appeal the initial rating assigned and continued to be received until the Veteran filed what was deemed a claim for an increased rating which was granted in the September 2011 decision on appeal; the criteria for TDIU were met from the November 29, 2007 date of claim for service connection for PTSD. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for an effective date of November 29, 2007, but no earlier, for the assignment of the 70 percent evaluation for PTSD, have been met. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.400 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for an effective date of November 29, 2007, for the award of a TDIU, are met. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Analysis Duty to Notify and Assist To the extent the actions taken herein below are favorable to the Veteran and considered a full grant of benefits requested and as allowed by law with respect to the only issues decided herein, further discussion of the VCAA is not necessary. The Board additionally notes that the RO obtained outstanding private treatment records prior to July 2010, as requested by the Board in the May 2016 remand. Thus, there has been compliance with the Board's remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). I. Earlier effective date for 70 percent rating for PTSD The Veteran contends that he is entitled to an effective date prior to December 20, 2010, for the award of a 70 percent rating for his service-connected PTSD. Specifically, he contends that the effective date should be November 29, 2007, the date that the initial claim for service connection for PTSD was received. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim; a claim reopened after final disallowance; or a claim for increase, will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a) and (b)(2); 38 C.F.R. § 3.400(o)(1). Applicable regulation provides that, if new and material evidence was received during an applicable appellate period following a RO decision (one year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b); see also Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Thus, under 38 C.F.R. § 3.156 (b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "New and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156 (a). See Young, 22 Vet. App. at 468. The RO has assigned a rating for the Veteran's PTSD under Diagnostic Code 9411. However, psychiatric disabilities other than eating disorders are actually rated pursuant to the criteria of a General Rating Formula. See 38 C.F.R. § 4.130. Under the General Rating Formula, a 10 percent rating contemplates occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating contemplates 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; impairments of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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. Id. As the United States Court of Appeals for the Federal Circuit has explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation . . . requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. When evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). Psychiatric examinations frequently include assignment of a GAF score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." There is no question that the GAF score and interpretations of the score are important considerations 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). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). (Parenthetically, the Board notes that the, revised DSM-5, which among other things, eliminates GAF scores, applies to certified to the Board after August 4, 2014. See 79 Fed. Reg. 45, 093 (Aug, 4, 2014)). In this case, the Veteran's claim for service connection for PTSD was received on November 29, 2007, and the claim was granted in the February 2009 rating decision with an assignment of a 30 percent evaluation from that date. A review of the record reflects the Veteran submitted a private treatment record in March 2009, which notes the Veteran's continued report of depression, anxiety, insomnia, and suicidal ideations without any plan. This new and material evidence was received within a year of the February 2009 rating decision and must therefore be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period, and therefore prevents the initial determination from becoming final. 38 C.F.R. § 3.156(b); see Muehl v. West, 13 Vet. App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after RO decision rendered RO decision non-final). This lack of finality is supported by the RO's readjudication of the claim in April 2009. As additional VA psychiatric treatment records continued to be received up to the time of the Veteran's subsequent December 2010 letter indicating that he wanted to file a claim for an increased rating, the February 2009 decision never became final and the November 29, 2007 claim remained pending as one for a higher initial rating. Thus, when the RO granted an increased, 70 percent rating, that award was in connection with a claim for a higher initial rating for PTSD. The appropriate effective date for such an award would be the date of claim or date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(b)(1); see also 38 C.F.R. § 3.400(b)(2)(i) (the effective date for a claim for disability compensation is the date of receipt of claim or the date entitlement arose, whichever is later). In Swain v. McDonald, 27 Vet. App. 219, 224 (2015), the Court noted that "both 38 U.S.C. § 5110 and 38 C.F.R. § 3.400 explicitly address and govern the effective dates for disability compensation claims, including increased rating claims, and these provisions generally tie an effective date to the earliest date a disability or an increase in disability is ascertainable or to the date the claim was received, whichever is later." Thus, according to the Court, an "effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested." (citing DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011); Hazan v. Gober, 10 Vet. App. 511, 521 (1997) (noting that for increased ratings claims, section 5110(b)(2) requires VA to "review all the evidence of record")). For the following reasons, review of all the evidence of record reflects that the Veteran's the Veteran's PTSD symptoms and overall impairment more nearly approximated the criteria for a 70 percent rating at the time of the claim and, accordingly, an effective date of November 29, 2007, is warranted for the initial 70 percent rating. January to May 2008 VA treatment records note the Veteran's report of anxiety and sleep problems, irritability, and insomnia. He was moderately depressed and denied suicidal ideations. A November 2008 VA examination report reflects the Veteran's report of nightmares about 3 to 4 times per week and intrusive memories at no particular frequency. He reported daily avoidance symptoms that have been integrated into his lifestyle. He reported nightly sleep impairment, daily irritability and daily hypervigilance, as well as irritability or outbursts of anger. A GAF score of 60 was assigned. The Veteran denied suicidal or homicidal ideations. He was clean neatly groomed, with intact attention and orientation. He reported he was happily married for twenty-five years and enjoys his family, and has limited close friends. The Veteran reported he was unemployed for one to two years due to physical problems and pain, but not PTSD. The examiner concluded his symptoms may reduce efficiency due to sleep impairment and his social functioning may be impacted negatively by irritability and avoidance behaviors secondary to PTSD. VA treatment records from February 2010 reflect the Veteran had more nightmares, vigilance, and more irritability since his old friends from Vietnam who were looking for him for 40 years and recently got in contact and started talking about their experiences. He stated he did not want to restart again, but he could not avoid it. He had no particular anger towards anyone and continued to have his frustration from medical issues. He reported compliance with medications and treatments. His sleep was fair due to pain. The Veteran denied the presence of active psychosis (auditory and/or visual hallucination, and delusion), and denied current suicidal or homicidal ideation, intention or plan. He was living with his spouse. His mental status was alert, oriented to person, oriented to place, oriented to time, casually dressed, and good personal hygiene. There was no abnormal psychomotor movement noted. He was pleasant and cooperative with good eye contact and speech was clear and coherent. His mood was described as "ok." His affect was appropriate; thought process was goal oriented and logical. His cognitive function was good with fair insight, judgement, and impulse control. His symptoms were characterized by vigilance, tense, irritability, insomnia, and nightmares. His anxiety and depression were a 4 on the PANSS scale, indicative of moderate symptoms. In March 2010, the Veteran indicated that a phone conversation with the fellow marine prompted him to have increased nightmares of his past combat. He reported that he had been married to his third wife for 26 years. Between the couple, they share six children, including three daughters and three sons. He typically has contact with his daughter who lives in California once every three to four years. He sees his other two daughters two to three times each year. They also have three sons including one who currently resides with them in Florida. The Veteran indicates that his other two sons live in Washington state and Missouri. He reported completing seven years of formal education before leaving school at the age of twelve. He reported that he later returned and obtained his high school degree as well as one and a half years of college study (AA degree). When asked how he typically spends his day, the Veteran reported that he will occasionally do some household tasks such as washing dishes or laundry. He reported that he walks for exercise and he has been somewhat more able to engage in physical activity since he has been prescribed methadone. The Veteran is then up for most of the evening. He endorsed a full constellation of symptoms consistent with PTSD including intrusive recollections and nightmares of his past combat experience. He reported significant symptoms of persistent avoidance of stimuli as related to his past combat experience. He reported that he has had difficulty interacting on a regular basis with a close friend who had located him following their service in Vietnam. The Veteran additionally demonstrated symptoms of persistent arousal including sleeping problems, hypervigilance, and anger/irritability. Mental status examination revealed the Veteran came dressed to his scheduled appointment in casual clothing including a sport shirt, jeans, socks, and shoes. His physical appearance and dress reflected excellent personal care and hygiene. His mood was somewhat anxious. At points, he held his head with both hands. He appeared to struggle when asked to provide any additional details regarding his past combat experience. He reported that he attempted to block these experiences from his memory throughout his adult life. He reported ongoing nightmares, noting that he experiences these on a variable basis. The Veteran's thought processes were logical, coherent, and organized. His speech was just slightly pressured. There was no evidence of florid psychosis. He denied current SI/HI with intent or plan. The Veteran had symptoms of persistent re-experiencing, persistent avoidance, and persistent symptoms of increased arousal. He reported that more recently, his symptoms have increased following his being contacted by a former Marine who served with him in Vietnam. He reports that this individual had actually sent him two video tapes including depictions of various experiences they shared together while in Vietnam. The Veteran has been unable to speak with this individual after their initial phone conversation. The Veteran has few close friends or confidantes, with the exception of one close neighbor. He reports a history of rage episodes of rage, which he indicates have now dissipated primarily due to his efforts to avoid similar interactions with other people. He reports physical confrontations in years past, in which bodily harm to others occurred in the course of these same confrontations. A GAF score of 55 was assigned. An April 2010 VA treatment record reflects the Veteran reported that he struggled with the fact that he is unable to work because of his physical condition. He indicated that work was a major part of his life following his military service. He has had difficulty adjusting to life outside of work given his medical condition and the fact that he has never developed many other hobbies or interests. The Veteran's mood was mildly dysphoric with no suicidal ideation or homicidal ideations noted. A May 3, 2010 VA treatment record notes the Veteran's frustration with no expression of anger towards anyone, and he expressed passive suicidal wishes from frustration but no active suicidal plan or intention. He had feelings of hopelessness and helplessness. His sleep was poor. He denied the presence of active psychosis (auditory and/or visual hallucination, and delusion). He denied current suicidal or homicidal ideation, intention, or plan. His support system includes his spouse. A GAF score of 45 was assigned. A subsequent May 2010 record reflects the Veteran complained of 9/10 pain in the left chest area from metal imbedded in his nerves as a result of his service. He was very upset and talked about ending his life if something could not be done to alleviate the pain. Here, the evidence reflects that from November 29, 2007, the date of the Veteran's initial claim for service connection, the Veteran experienced irritability, anger outbursts, and suicidal ideation related to his service-connected disabilities. The Board additionally notes that the Veteran was assigned a GAF score of 45 on that date. Pursuant to the DSM-IV, a GAF score from 41 to 50 is indicative of 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). The Board notes the Veteran and his spouse have indicated that the Veteran's PTSD symptoms have remained consistent since the November 2007 claim. Accordingly, based on the competent and probative evidence of record, the Board finds that the Veteran's disability picture more nearly approximate that required for a 70 percent disability rating from the November 29, 2007 date of claim. As such, the Veteran is entitled to an effective date of November 29, 2007, for the assignment of a rating of 70 percent for PTSD, representing a full grant of the benefit sought on this appeal with regard to this claim. II. Earlier Effective date for TDIU The Veteran's claim for a TDIU was received on December 20, 2010. A TDIU was granted in the September 2011 rating decision, effective December 20, 2010. The Veteran seeks an earlier effective date of November 29, 2007, for his TDIU, when he submitted his original service connection claims for his disabilities. Effective dates for TDIU are determined using the same rules as discussed above for the assignment of effective dates in claims for increased ratings for compensation. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1); Hurd v. West, 13 Vet. App. 449, 451 (2000). The Board also notes that on March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Under the applicable regulations, a TDIU may be granted only when it is established that the service-connected disabilities are 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). 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. In light of the Board's grant of an earlier effective date of November 29, 2007, for the assignment of the initial 70 percent rating for PTSD, the Veteran met the requirements for TDIU on a schedular basis from that date. See 38 C.F.R. § 4.16(a). Turning to the evidence of record, the Veteran reported in the notice of disagreement, received on March 17, 2009, that he was unable to work due to the residuals from his service-connected gunshot wounds and shrapnel wounds, and thus this constituted the earliest informal claim for entitlement to a TDIU. As such, the Veteran also had a pending claim for TDIU benefits in conjunction with his claim for a higher initial rating for PTSD. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009) (the issue of entitlement to a TDIU is deemed to have been submitted as part of any claim for a higher initial rating or an increased rating when evidence of unemployability is submitted at the same time as the claim and the Veteran seeks the highest rating possible). In his January 2011 formal TDIU claim, the Veteran indicated that he became too disabled to work in March 2007 due to his service-connected shrapnel injuries and PTSD. From November 29, 2007, as the Veteran met the schedular criteria for consideration of a TDIU, the Board next finds that the weight of the evidence supports a finding that the Veteran has been unable to secure or maintain substantially gainful employment due to his service-connected disabilities since that date. As discussed above, the severity of the Veteran's PTSD and the VA treatment records indicate the Veteran described excruciating pain as a result of his service-connected residuals of gunshot wounds and shrapnel injuries. The Veteran has provided consistent statements that he could no longer work as a result of these injuries at that time. The Veteran has a high school degree and an Associate's degree. He was previously an ironworker and owned and managed daycares. Although there are no medical opinions specifically addressing whether the Veteran's service-connected disabilities causes significant functional impairment that would make it difficult or impossible for him to work at any job for which he is qualified and that do not delineate the impairment caused by the each of the service-connected disabilities, "the applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Given the significant impairment caused by the Veteran's service connected disabilities as indicated by the lay and medical evidence, see id. at 1354 ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"), and his limited education and occupational experienced, the evidence is at least evenly balanced as to whether his service connected disabilities preclude him from securing or following a substantially gainful occupation. Thus, in resolving reasonable doubt in the Veteran's favor, the Board finds that his service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment as of the November 29, 2007 date of claim for service connection for PTSD. Therefore, entitlement to a TDIU from that date is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER An effective date of November 29, 2007, but no earlier, for the assignment of a 70 percent evaluation for PTSD, is granted, subject to controlling regulations governing the payment of monetary awards. An effective date of November 29, 2007, but no earlier, for the award of a TDIU, is granted, subject to controlling regulations governing the payment of monetary awards. ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Department of Veterans Affairs