Citation Nr: 1802889 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 11-12 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a skin disability of the face, including warts. 2. Entitlement to a higher rating for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling prior to March 20, 2008, and as 70 percent disabling thereafter. 3. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to July 2, 2008 REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Drucker, Counsel INTRODUCTION The Veteran had active military service in the United States Marine Corps from February 1969 to October 1970 that included service in the Republic of Vietnam. His awards and decorations include a Combat Action Ribbon. This case initially came to the Board of Veterans' Appeals (Board) on appeal from November 2006 and December 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The November 2006 rating decision denied an evaluation higher than 30 percent for the Veteran's service-connected PTSD. He perfected an appeal of this action. In May 2008, the Veteran testified during a hearing at the RO before a decision review officer. A transcript of the hearing is of record. A June 2008 rating decision granted a 50 percent rating for the Veteran's PTSD from March 20, 2008. The December 2009 rating decision denied service connection for a skin disability of the face and a fungal infection (onychomycosis). An August 2011 rating decision granted a 70 percent rating for PTSD and a TDIU, both from April 6, 2010. In May 2016, the Veteran testified during a hearing before the undersigned Veterans Law Judge that was conducted by videoconference regarding his service connection claims. A transcript of the hearing is of record. In August 2016, the Board remanded the Veteran's case to the Agency of Original Jurisdiction (AOJ) for further development. At that time, the Board noted that entitlement to a TDIU was raised and was part and parcel of the Veteran's claim for an increased rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A September 2017 rating decision granted service connection for onychomycosis bilateral feet (fungus infection) that represents a full grant of the benefits sought as to that matter. The decision also granted a 70 percent rating for PTSD from March 20, 2008, and a TDIU from July 2, 2008. FINDINGS OF FACT 1. The weight of the medical and other evidence of record is against a finding that the Veteran has a skin disability of the face, including warts that had its onset in service or is otherwise related to a disease or injury during his military service. 2. Throughout the appeal period since August 10, 2006, PTSD has been manifested by occupational and social impairment essentially commensurate with deficiencies in most of the areas, of work, school, family relations, judgment, thinking, and mood. 3. The Veteran's service-connected disabilities have precluded substantially gainful employment for which his education and occupational experience would otherwise qualify him since January 1, 2007. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disability of the face, including warts, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for a 70 percent rating for PTSD, but not higher, have been met since August 10, 2006. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 3. The criteria for a TDIU have been met since January 1, 2007. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist In September and October 2006, March and May 2008, October and November 2009, July, August, and September 2010, and June 2011 letters, the AOJ notified the Veteran of information and evidence necessary to substantiate his claims. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c). His service treatment records were obtained. All reasonably identified and available VA and non-VA medical records have been secured. In April 2011, the Social Security Administration (SSA) reported that records considered in the Veteran's claim for disability benefits were destroyed. See 4/18/11 Medical Treatment Records-Furnished by SSA. The Veteran underwent VA examinations in October 2006, March 2008, and May 2011, regarding his PTSD disability, and the examination reports are of record. The purpose of the Board's August 2016 remand was to obtain VA medical records regarding the Veteran's treatment between February 2011 and January 2013 and since April 2015, including a September 24, 2008 biopsy report, and to schedule him for VA examinations. There has been substantial compliance with this remand, as the Veteran underwent VA examinations regarding PTSD and his skin in October 2016, and VA medical records, dated from June 2008 to August 2017 including the September 2008 biopsy report, were obtained. In the August 2016 remand, the Board directed that the Veteran's claim for a TDIU prior to April 6, 2010 be referred to the VA Director of Compensation for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). This was not done, as directed by the Board. Stegall v. West, 11 Vet. App. 268 (1998). Nevertheless, in light of the Board's action herein, that grants a 70 percent rating for PTSD from the date of Veteran's increased rating claim on August 10, 2006, he is not harmed by the AOJ's inaction. As such, the Board will proceed to the merits. II. Facts and Analysis A. Service Connection Contentions The Veteran contends that he had folliculitis in service that persisted after discharge and developed into his current facial warts, rash, and bumps. He denied having facial problems prior to serving in Vietnam. See May 2016 Board hearing transcript at page 5. The Veteran said he was treated in service for a skin rash that was probably pseudofolliculitis barbae. Id. at 4. A no-shave slip was issued, but Marine policy dictated that he shave, so he did not seek further medical treatment. Id. at 6. The Veteran was treated by a now-deceased dermatologist shortly after discharge and began VA medical treatment about 10 years ago. Id. at 7-8. The Veteran also reported that he used shared razors while in Vietnam and believed they were contaminated. See 4/6/10 NOD. Thus, the Veteran maintains that service connection is warranted for a facial skin disability. Legal Criteria A veteran is entitled to compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §3.303. To establish service connection, evidence must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). A service connection claim must be accompanied by evidence that establishes that the claimant currently has the claimed disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet.App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to ... filing a claim for benefits based on that disability," Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Service incurrence for certain specified disorders, including chloracne or other acneform diseases consistent with chloracne, will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2017). Such a presumption, however, requires evidence of actual or presumed exposure to herbicides. Id. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307 (2017). A veteran who served on land in Vietnam is presumed to have had such exposure. VA has extended this presumption to veterans who served in other areas where Agent Orange is known to have been used. Id. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155, 160 (1998). Thus, presumption is not the sole method for showing causation. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). The Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran's service personnel records document his service in the Republic of Vietnam from August 1969 to July 1970. They also suggest he may have been exposed to herbicides. See 12/30/14 STR Medical (1st set), pages 5-6. In any case, due to his service in Vietnam, in-service exposure to herbicides is presumed. 38 U.S.C. § 1116. Service connection for facial warts and folliculitis, as due to exposure to herbicides, is not warranted on a presumptive basis. Facial warts and folliculitis are not among the diseases listed under 38 C.F.R. § 3.309(e). Therefore, presumptive service connection is not warranted. However, the Veteran is not precluded from establishing service connection with proof of direct causation. Service treatment records in August 1969 show that the Veteran was treated for a facial rash. See 12/30/14 STR Medical (2nd set), page 31. The impression was folliculitis of the beard area secondary to lymph adenopathy, and he was advised not to shave for two weeks. A skin abnormality was not noted when he was examined in October 1970 prior to separation from active service. See 12/30/14 STR Medical (1st set), page10-11. The post-service medical evidence shows that a skin biopsy from the Veteran's chin performed in September 2008 confirmed the presence of verrucae vulgares-two warts on his face for which cryotherapy was advised. See 9/19/16 Medical Treatment Record Government Facility. A December 2009 record reflects that he had verruca on his face and underwent cryotherapy for warts on his right chin. See 12/29/09 Medical Treatment Record Government Facility, page 1. According to an October 2016 dermatology note, prepared at the time of the Veteran's VA examination, he reported a history of treatment for warts on his face- on his nasal labial area and chin- that started after his service in Vietnam. See 5/18/17 C&P Exam, page 7-8. He was last treated 2 or 3 years earlier with laser therapy and said that the warts resolved and were no longer present. On examination of his face, there was no evidence of the prior treated warts. The assessment was that the Veteran's warts were successfully treated and no longer present. The October 2016 VA examiner noted a diagnosis of verruca vulgaris and that the Veteran traced the onset of the disorder to his active duty service although service treatment records did not record the condition. The Veteran had the warts treated with laser and there was no scar. The examiner stated that the Veteran currently had no warts on his face or chin. In the June 2017 addendum, the VA examiner noted her review of the Veteran's service and post-service medical records. The examiner observed that, while the Veteran's facial wart (near the nose) was documented 40 years after his active service, as noted in the previous skin examination report, the Veteran's service treatment records are silent for this condition. The only skin condition recorded in the service treatment records is noted on August 1, 1969 to be a folliculitis in the beard area with secondary submental lymphadenopathy. The folliculitis was treated by a 2 week shaving profile, antibiotics, and AC cream. An exam for an ear infection in November 1969 did not report any continuation of the folliculitis, but did comment on what was as likely as not a swelling of the same submental lymph node. See e.g., 12/30/14 STR Medical (2nd set), page 31. The examiner opined that it was less likely than not that a transient beard folliculitis (consisting of one cyst-like lesion) had any relationship to a facial wart in the nasal area diagnosed decades later. The examiner stated that folliculitis did not cause warts, and phenomena of different etiologies occurring 40 years apart, even if they are both skin conditions, were less likely than not to be related. In the August 2017 addendum, the VA examiner opined that it was less likely than not that the Veteran's beard folliculitis (1969 notations) or the wart that occurred years later resulted from herbicide exposure, since the medical literature did not support such a relationship. Where a disease or disability is diagnosed proximate to the current appeal period, but not currently, the Board is required to determine whether the earlier diagnosis was inaccurate or the previously diagnosed condition had gone into remission. Romanowsky, 26 Vet. App. at 303. The VA opinion clearly supports a finding that the Veteran's facial warts resolved and are no longer present, from which the Board concludes that the weight of the probative medical evidence supports a determination that the previously diagnosed wart disorder was essentially in remission and not present during (or proximate to) the file of this appeal. In the absence of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); see Degmetich v. Brown, 104 F. 3d 1328. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. The Board recognizes the Veteran's genuine belief that he has a facial skin disability that is related to his active military service. He is not, however, competent to render an opinion as to the etiology of his skin disability that involves a complex sensory system of the human body. Further, the Veteran has submitted no evidence beyond his own statements demonstrating the onset of a facial skin disability during his active service. While the Veteran is competent to report observable symptoms such as skin eruptions or a rash, he is not competent to provide evidence as to more complex medical issues, such as the underlying etiology of a skin disability. See Kahana, 24 Vet. App. 433-34. Lay testimony is competent if it is limited to matters that the lay person actually observed and is within the realm of the witness's personal knowledge. See 38 C.F.R. § 3.159(a)(2) (stating that competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience and lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The October 2016 opinion from the VA examiner, an internist, is the most probative evidence of record on the question of a nexus to service and it heavily outweighs the Veteran's statement regarding etiology. The Board places much weight on this competent medical evidence as it shows that the claims file was extensively reviewed and the Veteran's reports and relevant facts were duly considered. Additionally, it shows that the VA physician-examiner's opinion was based on a review of the pertinent history, and was supported by a detailed rationale, it provides compelling evidence against the Veteran's claim. The VA physician did not only provide data and conclusions, but also provided a clear and reasoned analysis that the United States Court of Appeals for Veterans Claims has held is where most of the probative value of a medical opinion comes is derived. See Nieves-Rodriguez, 22 Vet. App. 295, 303-04 (2008). While the Veteran believes that his claimed disability is related to his active service, but this opinion is of no probative value, because he lacks the medical training and skills needed to attribute his skin disability to active military service, as opposed to the other possible causes. The VA examiner was well qualified to assess the causes of the skin disability and provided extensive reasons for her opinions. For these reasons and those noted above, the Board finds that the 2016 VA examiner's opinion outweighs that of the Veteran. Additionally, there is no competent and credible lay or medical opinion or evidence to refute the October 2016 VA examiner's opinion. As such, the Board finds that the weight of the probative evidence of record is against a finding that the Veteran has a facial skin disability, including warts, that is causally or etiologically related to any disease, injury, or incident, in service. Consequently, service connection is not warranted. The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001). B. Increased Rating 1. PTSD Contentions The Veteran contends that the manifestations of his service-connected PTSD are more severe than are represented by the 30 percent rating prior to March 20, 2008 and 70 percent rating thereafter. He had more bad days than good ones, sleep difficulty, combat-related nightmares and flashbacks, anxiety, depression, weekly panic attacks, concentration and memory problems, and an inability to get along with people, due to his PTSD. See 9/29/06 VA 21-4138 Statement in Support of Claim; 7/3/07 NOD. Thus, the Veteran maintains that a higher rating is warranted for his PTSD. Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In the case of an increased rating, a claimant may also experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert, 1 Vet. App. at 57-58. Where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2017). The Veteran's statements describing the symptoms of his service-connected PTSD disability are deemed competent. These statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. Rating Criteria An October 1999 rating decision granted the Veteran's claim for service connection for PTSD that was assigned an initial 30 percent rating under Diagnostic Code 9411. A May 2002 rating decision confirmed and continued that rating. In August 2006, the RO received the Veteran's current claim for an increased rating for his service-connected PTSD. The June 2008 rating decision granted a 50 percent rating for PTSD from March 20, 2008, and the August 2011 decision assigned a 70 percent rating from April 6, 2010. The September 2017 rating decision effectuated the 70 percent rating from March 20, 2008. The General Rating Formula for Mental Disorders, including Diagnostic Code 9411, that evaluates PTSD, at 38 C.F.R. § 4.130, provides the ratings for psychiatric disabilities. A 30 percent rating is provided for 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). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted if the disability is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating contemplates 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); inability to establish and maintain effective relationships. A 100 percent rating contemplates 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 ability 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. The Board notes that the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5) was officially released and 38 C.F.R. § 4.130 was revised to refer to the DSM-5. VA implemented DSM-V, effective August 4, 2014. The Secretary of VA determined, however, that DSM-V does not apply to claims certified to the Board prior to August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The Veteran's case was certified to the Board in August 2008, and DSM-IV is applicable. The DSM-5 does not contain information regarding GAF scores. However, since much of the relevant evidence in this case was obtained during the time period that the DSM-IV was in effect, the Board will still consider this information as relevant to this appeal. Furthermore, there is no indication that the Veteran's diagnosis would be different under the DSM-V. A GAF score of 41 to 50 indicates 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 51 to 60 indicates moderate symptoms (e.g., a 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 61 to 70 indicates an assessment of some mild symptoms (e.g. depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning. The GAF score is not conclusive of the degree of impairment for VA purposes but, rather, must be considered together with all pertinent evidence of record. See 38 C.F.R. § 4.126 (2017). When it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102 (2017); Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (stating that factors listed in the rating formula are examples of conditions that warrant a particular rating and are used to help differentiate between the different evaluation levels). A veteran may only qualify for a given rating based on mental disorder by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Although a veteran's symptomatology is the primary consideration in assessing a disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in "most areas" for the 70 percent rating. Vazquez-Claudio v. Shinseki 713 F.3d 112 (Fed. Cir. 2013). Indeed, "VA must engage in a holistic analysis" that assess the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Analysis The assigned GAF scores have been primarily indicative of major to mild disability, and ranged from 45 assigned by a VA psychiatrist in March 2007 and the October 2016 VA examiner, commensurate with major impairment, to 70 assigned by a VA psychiatrist in May 2006, indicative of mild impairment. See 1/22/08 Medical Treatment Record Government Facility, pages 72-4, 84-8. The primary consideration is the overall level of impairment, as due to any symptoms. In Vazquez-Claudio, the Federal Circuit held that the deficiencies that would warrant a 70 percent rating must be due to symptoms that are the equivalent in severity to those listed as examples in the 70 percent criteria. Such symptoms or their equivalent have been demonstrated in this case. Indeed, the records show that, in December 2005, a VA psychiatrist noted that the Veteran's presenting problems included that he was "slightly explosive" and observed that the Veteran "may have anger management issues". See 1/22/08 Medical Treatment Record Government Facility, pages 97-99. The October 2006 VA examiner noted the Veteran's report of an instance of an angry outburst a year earlier when he hit someone who owed him money. In March 2007, a psychiatrist noted the Veteran's report that he had problems with people in the past few years and now avoided them to avoid problems. Id. at 72-74. The October 2016 VA examiner noted that the Veteran was referred for anger management treatment. The Veteran's PTSD has been treated with outpatient individual and group psychotherapy and prescribed medication for sleep difficulty. He was last treated in 2012, according to the October 2016 examiner. The March 2008 VA examiner particularly noted the Veteran's hypervigilance, sleep and concentration difficulty, nightmares, intrusive memories, depressive mood, irritability, isolation, diminished interest, and suicidal ideation. The Veteran had difficulty driving and lost his train of thought that caused him to miss where he was supposed to go. The examiner stated that the Veteran "appears to be someone who tends to put on a good face even if things are falling apart." See March 2008 VA examination report at page 3. The October 2006 VA examiner considered the Veteran less impaired. In May 2011, a VA examiner noted that the Veteran had obsessional rituals and was more depressed over the years due to PTSD with social isolation and great difficulty in relationships. The 2008 examiner particularly noted that the Veteran got depressed and the 2016 examiner reported PTSD symptoms caused clinically significant distress or impairment of social and occupational functioning. The 2016 VA examiner reported that the Veteran had disturbance of mood and motivation. The record shows that PTSD has caused deficiencies in the areas of work, school, judgment, and mood. The Veteran has not attempted school but his work impairments indicate that he would also have deficiencies in the area of school should he attempt to return. The October 2006 examiner noted the Veteran's report that he worked 30 hours a week as a bricklayer when available but also noted the Veteran's allusions to work difficulties from a racial perspective. The October 2016 examiner stated that the Veteran was told he had an attitude problem and stopped working. VA examiners in October 2006, March 2008, May 2011, and October 2016, noted the Veteran's anxiety, depression, nightmares and sleep difficulty, easy startle, isolation, trouble maintaining friendships, and irritability. The October 2006 examiner found no evidence of suicidal ideation although the March 2008 examiner noted the Veteran's report of having suicidal ideation that occurred every couple of weeks since 1999 with no suicidal attempts and no homicidal ideations. In a June 2008 addendum, the March 2008 examiner commented that the Veteran had suicidal ideation not noted by providers but reported currently. Regarding the suicidal ideation, the Board notes that in Bankhead the Court noted that, "[T]he presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Bankhead, 29 Vet. App. at 20 (affirming that suicidal ideation does not require suicidal intent, a plan, or prepatory behavior). Further, the October 2006 examiner noted that the Veteran lived with his wife and kept in close touch with his five adult children. However, the March 2008 examiner noted the Veteran's report that he was separated from his wife since 1999, lived alone, and sometimes a son or grandson stayed with him. In the June 2008 addendum, the March 2008 examiner commented that the Veteran said he was separated since 1998 but a 2001 VA examination report indicates the Veteran and his wife reconciled and then separated. The examiner observed that the Veteran may have faulty recall as he alleged memory loss that was clearly articulated in his (2008) hearing transcript and, during the examination, reported bypassing destinations and drifting from a task. In the aggregate, the competent evidence reflects symptoms more nearly approximated by a 70 percent evaluation under Diagnostic Code 9411 throughout the appeal period. See e.g., 1/22/08 Medical Treatment Record Government Facility, pps. 7, 14, 16, 21, 25, 30, 42, 46-7, 50, 58-60, 72-4, 81, 97-9, 100-02. The medical evidence, including the VA examination reports, further demonstrates that the Veteran reported irritability, anxiety, sleep difficulty and nightmares, avoidant behavior, and social isolation. After consideration of the relevant medical and lay evidence of record, the Board finds impairment from service-connected PTSD more nearly approximated by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood over the entire rating period on appeal. However, the Board does not find that the pertinent evidence of record shows that the Veteran has total occupational and social impairment as is contemplated in the criteria for a 100 percent schedular rating. Regarding some of the example symptoms listed in the 100 percent criteria, the 2006, 2008, 2011, and 2016 VA examiners reported that the Veteran was oriented. Gross impairment in thought processes or communications, delusion or hallucinations, or grossly inappropriate behavior, have not been documented in the clinical record or in the competent lay statements from the Veteran. The examiners found no evidence of auditory or visual hallucinations or delusions or psychotic thought. The May 2011 examiner reported impairment of thought process and noted that the Veteran had trouble making decisions and prioritizing but indicated that the Veteran was oriented and did not have auditory or visual hallucinations or delusions. The Veteran's thought processes were logical and coherent, his speech was reported as clear, and he repeatedly denied having homicidal ideations or plans. The May 2011 examiner reported obsessive and ritualistic behaviors that involved checking doors, appliances, and gasolines so the Veteran's house will not burn down. In 2007, the Veteran reported having weekly panic attacks. See 7/3/07 NOD. The 2011 examiner reported that the Veteran did not have panic attacks. No examiner reported that the Veteran had auditory or visual hallucinations or delusions. Further, the 2011 VA examiner stated that the Veteran could maintain minimal personal hygiene and a clinician in May 2007 described the Veteran's hygiene as acceptable. See 1/22/08 Medical Treatment Record Government Facility, pages 46-47. No clinician has stated that he is unable to maintain his personal hygiene. The Veteran has also not had symptoms of similar severity, frequency and duration as those listed in the criteria for a 100 percent rating. The Veteran is married but separated from his wife, lived alone, and had five adult children with whom he had good relationships, according to the 2008 and 2016 VA examiners. He told the 2016 examiner that, while he had little contact with some of his children, he saw his younger daughter and her two children daily. Indeed, although the Veteran reported difficulty in maintaining relationships, the 2011 examiner noted that he had one friend. The Board finds that these examples show some social capacity and not total social impairment. In sum, the Board finds the above evidence is competent, credible, and weighs against a finding of impairment more nearly approximated by total occupational and social impairment due to PTSD. In sum, resolving reasonable doubt in the Veteran's favor, a 70 percent rating, but no higher, is granted for PTSD since August 10, 2006, but the preponderance of the credible medical and lay evidence of record is against a rating in excess of 70 percent. The benefit of the doubt has been applied, as appropriate. 38 U.S.C. § 5107(b). The Board finds that at no time since the Veteran filed his most recent claim for an increased rating for PTSD, has the disability on appeal been more disabling than as currently rated under the present decision of the Board. 2. TDIU VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing or following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). If a veteran's service-connected disabilities meet the percentage requirements of 38 C.F.R. § 4.16(a), and the evidence of record indicates that he is unable to maintain substantially gainful employment due to his service-connected disabilities, his claim for a total disability rating based on unemployability cannot be denied in the absence of medical evidence showing that he is capable of substantially gainful employment. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Entitlement to TDIU is based on an individual's particular circumstance. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). By the Board's action herein, the Veteran meets the minimum percentage requirements for a TDIU under 38 C.F.R. § 4.16 (a) since August 10, 2006. A TDIU is in effect from July 2, 2008, and the current question is whether entitlement to a TDIU is merited prior to that date. The central inquiry is "whether the veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The record reflects that the Veteran has not held full time work at any time since 2006. He told the 2006 VA examiner that he worked approximately 30 hours as a bricklayer if available, although he reported in his TDIU claim that he last worked full time in July 2, 2008 when he became too disabled to work. See 8/2/10 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The salary information the Veteran submitted contradicts his report. See 8/2/10 Income and Tax Statements; 10/1/10 Income and Tax Statement. Notably, his wage and salary statement for June 25 to July 1, 2008 shows that he only worked for twelve hours. The October 2016 VA examiner noted that records showed that the Veteran had two jobs since discharge, at a steel mill and then for two years as a bricklayer, until he was injured on the job. He was told he had "attitude problems" and stopped working. During the examination the Veteran gave a different job history, and said he worked at a steel mill and then as a brick layer until he retired in 2009 or 2010 with several periods of unemployment and a work injury in 1990. The SSA found the Veteran unable to work and eligible for benefits since July 1, 2008 due in part to PTSD. See e.g., 8/2/10 Correspondence. The income information provided by the Veteran reflects that, in 2006, his yearly total earnings were $31,957.59. See 10/1/10 Income and Tax Statement. The Board finds that this verifies that he was capable of substantially gainful employment in 2006. While the Veteran has worked on a part time basis since 2007, marginal employment is not considered to be substantially gainful employment. 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. 38 C.F.R. § 4.16(a) (2014). The poverty threshold for an individual under age 65, as determined by the federal government, has ranged from $10,787 in 2007 to $11,201 in 2008. U.S. Census Bureau; available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. The earnings information provided by the Veteran shows that his yearly total earnings in 2007 were $9,194-below the poverty threshold in 2007. In 2008, his yearly total earnings were $456.40, well below the poverty threshold in 2008. See 8/2/10 Income and Tax Statements. Again, the Veteran has reported work experience as a bricklayer and did not report any other work experience. His service-connected ischemic heart disease could cause some limitation in physical ability. Moreover, the evidence indicates that he has no skills transferable to sedentary jobs. It is difficult to envision gainful non-sheltered employment that would permit such accommodations. Given the above, the evidence is at least in equipoise as to whether the Veteran's service-connected PTSD, along with his ischemic heart disease, combined to prevent him from working in substantially gainful employment prior to July 2, 2008 and since January 1, 2007. As the Veteran has held only marginal employment during that period, entitlement to TDIU is granted since January 1, 2007, but not earlier. 38 U.S.C. §§ 1155, 5107(b). ORDER Service connection for a skin disability of the face, including warts, is denied. A 70 percent rating, but not higher, for PTSD is granted throughout the appeal period and since August 10, 2006. TDIU is granted since January 1, 2007. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs