Citation Nr: 18141499 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 05-00 821 DATE: October 10, 2018 ORDER An initial disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary awards. An effective date of August 2, 2002, but no earlier, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran’s symptoms of PTSD have been manifested by occupational and social impairment with deficiencies in most areas but not by total occupational and social impairment. 2. Effective August 2, 2002, the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and experience. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411. 2. From August 2, 2002, but no earlier, the criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to October 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2003, March 2014, and February 2018 rating decisions. In a June 2013 decision and remand, the Board denied an initial disability rating in excess of 50 percent for PTSD and remanded the issue of entitlement to a TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), which, in a December 2014 order, vacated the Board’s decision and remanded the case for readjudication in accordance with the parties’ Joint Motion for Remand. Most recently, in June 2015, the Board remanded the issues of entitlement to an increased initial evaluation for PTSD and entitlement to a TDIU for further development, and the case has been returned for appellate consideration. The Board finds, and in a March 2018 letter via his attorney, the Veteran agrees, that there has been substantial compliance with the June 2015 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial and not strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)); see also Dyment v. West, 13 Vet. App. 141, 146–47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand). In the February 2018 rating decision, the Agency of Original Jurisdiction (AOJ) increased the evaluation for PTSD to 70 percent disabling and granted a TDIU, both effective May 19, 2017. As these are not full grants on the Veteran’s appeal of the initial evaluation of disability for PTSD, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993); Rice v. Shinseki, 22 Vet. App. 447 (2009) (stating that a TDIU claim is part and parcel of an increased rating claim when such is raised by the record). The Board notes that in his August 2018 notice of disagreement, the Veteran disagreed with the effective date of the award of the disability rating of 70 percent for PTSD, the effective date of the award for a TDIU, and the effective date of the basic eligibility to Dependents’ Educational Assistance. To the extent of the overlap in issues with the instant appeal, the Board has jurisdiction over the issues of entitlement to an increased initial disability rating for PTSD and entitlement to an earlier effective date for the award of a TDIU. The objective is to fully resolve the Veteran’s case. The Board notes that correspondence from the Veteran’s attorney since the August 2018 supplemental statement of the case has been accompanied by waiver of initial AOJ review. See Disabled Am. Veterans v. Sec’y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304(c). Increased Rating Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing 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 with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied 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. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The nomenclature used in the rating schedule for mental disorders is based upon the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. § 4.130. Although certain symptoms must be present in order to establish the diagnosis of PTSD, it is not the symptoms but their effects that determines the level of impairment. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (quoting 61 Fed. Reg. 52,695, 52,697 (Oct. 8, 1996)). “A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The Board observes that 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130 were updated via an interim final rule, made immediately effective August 4, 2014, in part to substitute references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) for the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The Secretary directed that the changes be applied to applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, but not to claims certified to or pending before the Board, the United States Court of Appeals for Veterans Claims (Court), or the United States Court of Appeals for the Federal Circuit. 79 Fed. Reg. 45, 093, 45,094-096 (Aug. 4, 2014); Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Since the Veteran’s claim was certified to the Board in June 2005, the DSM-IV applies. An examiner’s classification of the level of psychiatric impairment at the moment of examination, by words or by a global assessment of functioning (GAF) score, is to be considered, but it is not determinative of the percentage disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995). GAF scores correlate to a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Richard v. Brown, 9 Vet. App. 266, 267 (1996) (quoting American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), 32 (4th ed. 1994)). Under the DSM-IV, a GAF score of 31 to 40 reveals some impairment in reality testing or communications (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF score between 41 and 50 indicates that a veteran has 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 score of 51-60 is appropriate where there are moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A score of 61-70 indicates 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, has some meaningful interpersonal relationships. When rating a mental disorder, VA 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. The rating agency must assign a rating 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). While the extent of social impairment must be considered, an evaluation shall not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In addition to PTSD, for which service connection has been established, the record shows additional psychiatric diagnoses as well as headaches and head trauma, which are not currently service-connected. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability, in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996)). Here, mental health professionals have not attempted to differentiate between the symptomatology associated with the Veteran’s PTSD and that resulting from any nonservice-connected condition. Indeed, mental health professionals have considered whether much of the Veteran’s physical symptoms related to both service-connected as well as nonservice-connected conditions have been somatization of his psychiatric condition. For the purpose of this decision, the Board will attribute all of the Veteran’s psychiatric symptoms and any symptoms believed to be somatization to his service-connected PTSD. Here, the Veteran’s service-connected PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, currently evaluated as 50 percent disabling prior to May 19, 2017, and as 70 percent disabling thereafter. Under diagnostic code 9411, a 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The maximum rating of 100 percent requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. When the schedular rating is less than total, a total disability rating for compensation may be assigned, when in the judgement of the rating agency, the claimant is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Such assignment may be assigned if there is only one disability ratable at 60 percent or more or if there are two or more disabilities such that at least one disability is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The existence or degree of non-service-connected disabilities or previous unemployment status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the claimant unemployable. Id. Marginal employment shall not be considered substantially gainful employment. Id.; see Cantrell v. Shulkin, 28 Vet. App. 382 (2017). In the event the claimant is unable to secure or follow a substantially gainful occupation due to service-connected disabilities but fails to meet the percentage standards, the matter should be submitted for extra-schedular consideration by the Director, Compensation Service. 38 C.F.R. § 4.16(b). To be granted a TDIU, the Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (noting that the level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s eighth grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380–81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claims. The Board notes that the Court’s concern in its January 2013 remand was the Board’s failure to discuss the Veteran’s symptoms and to analyze under Mittleider v. West, 11 Vet. App. 181, 181–82 (1998), Shoemaker v. Derwinski, 3 Vet. App. 248, 252–54 (1992), and Mauerhan v. Principi, 16 Vet. App. 436, 442–43 (2002). In its December 2014 remand, the Court’s concerns were the Board’s failure to account for clinical observations of symptoms in the era of the Veteran’s early diagnosis and treatment and in 2002 as well as the Board’s problematic finding regarding the Veteran’s credibility. From the outset, the Board notes that while the lay evidence in this case is competent as to matters of personal knowledge, it is not competent to support an opinion as to diagnoses or etiologies of the Veteran’s disabilities. Such opinions require specific medical training and are beyond the competency of a lay person. For the same reason, lay evidence is not competent to state whether his symptoms warrant a specific rating under the schedule for rating disabilities. See 38 C.F.R. § 3.159(a)(1)–(2) (2017) (defining competent medical evidence and competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469–70 (1994) (noting that competent lay evidence requires facts perceived through the use of the five senses); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that “lay persons are not competent to opine on medical etiology or render medical opinions.”); Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007). Competency of evidence differs from credibility and weight. “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); see also Layno, 6 Vet. App. at 469; Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating, “Although interest may affect the credibility of testimony, it does not affect competency to testify.”). Lay evidence is credible when it is internally consistent and consistent with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); see, e.g., Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board notes that, by examining the record narrowly and in small segments, VA examiners have found inconsistencies in the Veteran’s reporting, of which there are many, many, examples, and questioned his credibility. The Board is cognizant that the written record of his reports may not necessarily be an accurate reflection of what the Veteran actually reported during assessments and examinations. The Board has the responsibility of weighing conflicting medical opinions and may place greater weight on one physician’s opinion over another depending upon factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300–04 (2008); Prejean v. West, 13 Vet. App. 444, 448–49 (2000) (stating that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Board finds that some of the medical opinions in this record, which after years of adjudication now cover a constellation of viewpoints, are not particularly probative because the professionals either did not have access to the Veteran’s claims file, selectively focused on near-term history rather than a composite long-term view, or were formed during the nascent period of understanding of PTSD. The Board notes that when the Veteran served in Vietnam, PTSD had not been defined by psychiatry. Examining this case with hindsight allows appreciation that the incremental recognition of the presence and severity of the Veteran’s PTSD symptoms during the years-long adjudication of his claims for service connection for PTSD (May 1995 and April 2002/August 2002) occurred in lockstep with advances in medical and lay understanding of the disorder. Because the issue here is the initial evaluation of disability when the Veteran brought his August 2002 claim to reopen his previously denied claim for service connection for PTSD, pursuant to Fenderson v. West, 12 Vet. App. 119 (1999) and the Court’s December 2014 remand, the Board will focus on the evidence presented in the earliest periods of adjudication of the Veteran’s claims. This is a complex process. Pertinent Evidence In a June 2002 statement, the Veteran reported that while in Vietnam, leading his men on point, he was shot by a sniper, with the bullet entering his left cheek and exiting the back of his neck, which was followed by grenades landing near him. He was then shot in the left elbow, and he “lost control of his bowels and kidneys all at the same time.” He stated that he had never been so ashamed. He stated that when he was loaded onto the helicopter he could hear the men talking about how badly he smelled. He stated that he spent nine months in the hospital for rehabilitation after his Vietnam wounds and at no time was he offered treatment for trauma, nervous disorder, or mental instability, and he was never asked if he needed any help. During an August 2002 VA examination for PTSD, the Veteran reported losing ten of twelve men in his squad during that attack, and he felt a lot of guilt. He is in receipt of a Purple Heart Medal. The Veteran ’s service treatment records show that in April 1969 he suffered gunshot wounds to the left neck, face, and left elbow that produced wounds about the checks and ears, which required evacuation from Vietnam and significant medical treatment including surgery. His records show that several months later he reported weakness and dizziness with sudden positional changes and syncope with ejaculation. It was noted that there was no evidence in past history or present evaluations that the Veteran had emotional disturbances. He also reported ringing in the ears. Service treatment records show that in October 1970 the Veteran sustained injuries to his right wrist in an automobile accident, which required emergency surgery for a severed radial artery, as well as facial lacerations. He was diagnosed with encephalopathy, posttraumatic, secondary to the hand injuries sustained in the same accident. It was noted that he was disoriented secondary to head trauma and in shock secondary to blood loss. Records show that he received six units of blood initially. The records show that he was evaluated for blood behind the left tympanic membrane. The records show that he received occupational therapy and had a single psychiatric consultation as part of rehabilitation of his right hand. It was noted on his December 1970 separation physical that he reported insomnia, especially since his overseas tour and injuries; nightmares, including cold sweats, about his tour in Vietnam; loss of memory status post brain concussion; and fainting spells, manifested as periodic unconscious episodes. In a June 2002 letter, a friend stated that she had known the Veteran since he was seventeen years old. She stated that when they met he was working for his father in construction and she found him to be a bright, articulate, and well-focused individual. She stated he had a genuine sense of humor and the unique ability to relate spontaneously and effectively to a wide spectrum of personalities and age groups. She stated that after he entered service they lost touch for eight or ten years, during which he was married and divorced three times. She stated he was working for his father again. She stated that she and the Veteran moved in together in 1977 and lived together for a year. She stated that if someone walked up behind him he would turn and assault the person. She stated that he drank daily. She stated that the Veteran had night sweats such that linens had to be changed daily, and he had nightmares. She stated that the nightmares were so realistic that the Veteran would defecate before waking up. She stated this necessitated them replacing a mattress and using a rubberized mattress protective cover. She stated that during the year they lived together, the Veteran defecated in his sleep a total of five to six times. She stated that the nightmares affected his ability to sleep for days at a time. Medical records show that in October 1984 the Veteran was hospitalized for four days due to fracture of the left frontal sinus and left frontal bone as well as scalp laceration and cerebral concussion, which resulted from being struck by a metal pipe on the forehead during drilling. In a July 2002 letter, a former girlfriend stated that she met the Veteran and became friends in 1986, and they started dating in the early 1990s. She reported that the Veteran had told her about his nightmares and night sweats, which she then witnessed when they started dating. She stated that he also experienced problems with his bowels, which he blamed on food. A July 2002 letter from Vet Center shows that the Veteran presented in March 1990 for legal and medical issues. Medical records show that in January 1990 he was admitted to the hospital after allegedly being found poorly responsive in a parking lot, showing facial trauma. It was noted that CT scan revealed subarachnoid hemorrhage. It was noted that upon admission he was disoriented as to time, person, and place. It was noted that during his week of hospitalization, the Veteran at times remained confused intermittently, which improved such that he was felt to be close to normal at the time of discharge. The Veteran’s claims file contains a resume that spanned from 1966 to 1995. It showed that after service he worked in construction for four years then worked in insurance for two years. In 1977 he started working for his father’s business in well drilling, and from 1982 to 1992 he was the owner of that business. It shows that from 1993 to 1994 he was the owner/operator of a wrecker service and from 1994 to 1995 he worked for an insurance agency. In a July 2002 letter, the Veteran’s mother stated that when he was discharged from service he was so absent-minded that she did not think he should be driving. She stated that he had been married six times and had had numerous live-in girlfriends and that most of them, at one time or another, had spoken to her about his nightmares, night sweats, loss of bowel and kidney control, and bad drinking habit. She stated that over the years she and his father had supported him financially. She stated that they sold the family drilling business to the Veteran and that annually for five or six years the gross income dropped until he was forced to sell it. She stated that when he went to vocational rehabilitation afterward, it was determined that he had brain damage and was unemployable. She stated that he then qualified for Social Security Administration (SSA) benefits. During a February 2015 private vocational employability assessment, the Veteran reported that when he bought the family business it was a quarter million dollar business but under his ownership there were annual financial losses of fifty to seventy-five thousand each year. He attributed this to his succession of nightmares, inability to sleep, and inability to build customer relations due to anger outbursts. Medical records show that in February 1995 the Veteran had a head CT to rule out bleed, tumor, hydrocephalus, etc. in light of a history of head injuries and short-term memory. An ENT (ear, nose, throat) consultation at the same time showed that he reported left ear pain for two to three years, decreased hearing, and decreased balance. It was also noted that he reported a “buzzing sound in head.” The CT report showed that there was mild cortical atrophy. Handwritten notes from February 1995 show that the Veteran reported reduced sleep and difficulty getting to sleep for about three years. It shows that he denied nightmares. A handwritten consultation sheet from February 1995 noted the Veteran’s 1989 head injury. It shows that he reported having decreased focus and attention for six months and short-term memory loss and that he had lost his job because of this. Medical records from March 1995 show that the Veteran reported having been married six times and having been treated for head injury. It was noted that he reported having a twelfth-grade education, technical training in drilling, and the completion of a 240-hour course in property and casualty general lines insurance. He reported having been arrested for DWI, domestic violence, and assault. The typed notes of a March 1995 psychological assessment show that the Veteran reported that he had not received any mental health treatment. He reported having been married six times. He reported selling the family drilling business two-and-a-half years before and taking an insurance course afterward. He reported that he failed the examination after numerous attempts so he worked with a friend in the wrecking business for a year-and-a-half. He reported passing the insurance exam and working for a local insurance company, which lasted until January 1995. He reported that his employer said he could not focus sufficiently and was not meeting production requirements, so he quit ahead of being fired. He reported that he would sit dazed for two to three hours and would pass out for 30 minutes to an hour. The Veteran attributed his current problems to combat in Vietnam. He was diagnosed with generalized anxiety disorder with somatic symptoms and personality disorder NOS (not otherwise specified). In the handwritten notes of the March 1995 psychological assessment, the interviewer raised the issue of somatization of psychological symptoms. It was noted that the Veteran denied any significant problems from his military experience, denied nightmares, and denied flashbacks. It was noted that the Veteran reported passing out if he pushed himself too hard. It was opined that the Veteran had anxiety secondary to medical, financial, and employment problems. The records of the April 1995 continuation of the Veteran’s evaluation show that he was diagnosed with PTSD along with rule out for concussion. It was noted that he was resistant to psychological explanation of his physical pain. It was noted that CT scan showed mild cortical atrophy (no active process). Handwritten notes from April 1995 show that the Veteran claimed to have PTSD, that he reported he had difficulty sleeping, and that he reported he had recurrent nightmares about Vietnam. He was diagnosed with adjustment disorder with depressed mood secondary to loss of job. In December 1995, the Veteran was afforded a VA examination for PTSD, during which he reported he did not remember how many times he had been married but the shortest was forty days and the longest was two years. It was recorded that he had been unemployed since October 1994 and that he had interviewed with an insurance company, hoping to get a new job. It was recorded that he assured the examiner that his inability to do physical labor was due to physical problems, weakness and sharp pain in his service-connected left arm. It was recorded that he did not see a problem doing work as an insurance agent. It was recorded that the Veteran had been paranoid since returning from service, had difficulty sleeping, and complained about headaches and occasional nightmares about being shot. He reported problems due to financial issues, that he constantly thought about finances, and that he had insomnia due to thinking about finances. It was recorded that the Veteran could not make decisions, had lost confidence, and felt depressed. The Veteran felt guilty about losing the family business. The examiner opined that the Veteran did not have PTSD since his only symptom related to his Vietnam experiences was nightmares. It was stated that the more appropriate diagnosis was generalized anxiety disorder with somatic complaints. It was stated: “he does not show problems as far as his work is concerned from psychiatric point of view. His third diagnosis should also be dysthymia. His anxiety and depression is directly related to his financial problem rather than his combat in Vietnam.” It was opined that he was competent to handle his own affairs and capable of gainful employment. In January 1996, the Veteran was afforded a VA examination for diseases and injuries of the brain. It was recorded that he reported the gunshot wounds injuring arm, face, neck, and ears, and the right arm injury. It was recorded that he denied any specific brain injury other than the injuries noted. It was recorded that he reported occasional headaches and problems with concentration on details. It was noted that he was on medication for depression and anxiety. The examiner noted that the Veteran had some difficulty concentrating on specific questions but when focused, he answered appropriately. It was noted that CT scan revealed no evidence of intracranial pathology and that there was no evidence of organic brain syndrome. It was opined that he appeared to have problems with his psychiatric illness causing him some distress. An April 1996 letter from Dr. C.G.M., who was part of a neuro-ophthalmology clinic, shows that the Veteran had bilateral papilledema with commiserate enlargement of blind spots on visual fields, indicative of increased cranial pressure, and a CT scan was recommended. After reviewing the Veteran’s CT scan, in a separate April 1996 letter, Dr. C.G.M. informed the Veteran that the scan was normal, and therefore, it was recommended that a spinal fluid examination be performed to exclude an infectious process as the cause of his increased pressure in and around the brain. In a July 1996 letter from Dr. J.F.C., a clinical neuropsychologist, to Vocational Rehabilitation, it was noted that the Veteran’s head injuries included the gunshot wounds in Vietnam; the in-service automobile accident; a 1984 drilling accident; and the 1990 tavern fight. The Veteran reported that everything went downhill after the beating such that he was unable to sustain the family business, lost accounts, eventually selling. In Dr. A.S.McC.’s May 1996 notes and June 1996 letter to Vocational Rehabilitation, it was recorded that the Veteran sustained a frontal chronic head injury during the in-service auto accident. It was noted that he had brought all his medical records and raised the issue of cumulative effects of his in-service head injury and two subsequent head injuries. It was noted that in 1984 he was hit in the frontal area by a rig during drilling, and in 1990, he was punched and knocked unconscious when he hit the pavement. It was noted that after the in-service auto accident the Veteran was rendered comatose and amnesic; the second event produced lacerations and he was emotionally agitated but there was no loss of consciousness; and the third event produced no demonstrable complaints following, noting that he was highly intoxicated. The Veteran reported having trouble thinking and expressing or explaining his ideas clearly, which he attributed to a cumulative effect of head injuries and as a cause of the barrier to employment since losing his insurance job the year before. It was noted that he had earned a substantial income in construction and drilling. It was recorded that he reported his trouble starting in 1992, during his sixth divorce, when he was forced to sell the family drilling business. He also reported that he sold the business because of pain and exhaustion relating to his physical injuries, impairing his efficiency in the highly physically demanding work. He reported that he had been prescribed a “medicine cabinet-full” of psychoactive and other drugs, which he took liberally. It was opined that the medication and the Veteran’s financial stress were more responsible for his cognitive difficulties rather than a cumulative effect of head injuries. Dr. A,S.McC. referred him to Vocational Rehabilitation for assistance with training, evaluation, or placement in a less physically demanding job, such as insurance in which he already had experience. In Dr. J.F.C.’s July 1996 letter to Vocational Rehabilitation, it was stated that the Veteran reported that while working in insurance he had difficulty handling the phones and computer at the same time, and once he left the one agency, the other agencies blackballed him. It was observed that the Veteran adapted to impaired concentration with conservatism and caution, working slowly and unhurriedly. It was stated: “His painstaking, tortuously slow, progress on complex mental tasks demands up to three and four times the normal amount of time usually required.” It was noted that his “obvious social judgment and social courtesy do not translate into efficient problem solving.” It was noted that suicidal ideation was expressed. Dr. J.F.C. recommended that the etiology of the Veteran’s cerebral dysfunction was indeterminate at that late date but the need for psychiatric management was not, including the need for anti-psychotic medication. It was recommended that he not attempt to provide customer service or marketing services; his cognitive status precluded productive or meaningful business operations; he was able to work under supervision and minimal decision-making. The Veteran was encouraged to find “part-time employment with a forgiving and tolerant owner.” In a September 1996 addendum to his July 1996 report, Dr. J.F.C. stated that the Veteran’s Axis I through IV diagnoses were: organic personality change due to brain damage, paranoid type; cognitive disorder NOS; intermittent explosive disorder; problems related to brain dysfunction, in social and occupational adaptation. He was assigned a GAF score of 60, moderate symptoms. Medical records from SSA show that in January 1997 the following were present: memory impairment, perceptual or thinking disturbances, change in personality, disturbance in mood, emotional lability and impairment in impulse control, and intermittent explosive disorder. It was indicated that the Veteran had inflexible and maladaptive personality traits which caused either significant impairment in social or occupational functioning or subjective distress, as evidenced by: pathologically inappropriate suspiciousness or hostility, pathological aggressivity, intense and unstable interpersonal relationships and impulsive and damaging behavior, and intermittent explosive disorder. It was indicated that the Veteran was markedly limited in: the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; the ability to make simple work-related decisions; and the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. A February 1997 SSA Disability and Transmittal form shows that the Veteran applied for SSA disability in November 1996, and he was found disabled due to organic mental disorder and to organic personality disorder, paranoid type, as well as cognitive disorder. In a May 2002 letter, the Veteran wrote to a treating VA physician to obtain meaningful address of his nightmares of Vietnam that caused loss of bowel and bladder control during sleep. He stated that he had a recurring nightmare about Vietnam that woke him during the night two or three times per week and caused him to lose bowel and kidney control. He stated that he wore a diaper to bed each night to protect the bed. He stated that he had reported this to a number of people who did not react in any meaningful way. He stated that he had spoken to the doctor to whom he was writing, who recommended that he discontinue taking his medications. The Veteran voiced concern that if he stopped taking the anti-depressant whether he would go completely crazy. In a June 2002 statement in support of claim, the Veteran stated that since service he had not had a night when he did not wake up covered in sweat. He stated that sometimes he woke up holding his breath waiting for the second bullet to hit him in the elbow, and sometimes he felt it hit his elbow and he would lose control of his bowels and kidneys. He stated that he wore diapers to bed. He reported that these dreams used to occur six or seven times per year, but in the past five or six years they had increased in frequency. He reported that since September 2001, it had happened as frequently as three times in a week. A July 2002 letter from Vet Center shows that in February 2002 the Veteran was referred by Dr. J.A. for assessment for PTSD and treatment, and he had been seen weekly since. It was stated that the Veteran complained of poor sleep punctuated with combat-related dreams, night sweats, intrusive thoughts of combat, medical problems related to several head injuries, poor interpersonal relationships, emotional reactions to stimuli related to his traumatic experiences and isolation/estrangement from others. It was noted that the Veteran reported his chronic PTSD symptoms contributed to his six failed marriages, low self-esteem, medical problems, and limited vocational success. The author of the Vet Center letter stated: “My impression is that [the Veteran’s] traumatic experiences and subsequent PTSD symptoms have contributed to his difficulties socially, vocationally, and psychologically. His symptoms are consistent with a diagnosis of Posttraumatic Stress Disorder. His personality traits of defensiveness, low self-esteem, occasional grandiosity make his prognosis poor.” In a July 2002 statement in support of his claim, the Veteran listed his symptoms as including: recurrent and intrusive distressing recollections of the event; recurrent, distressing dreams of the event; sudden acting of feeling as if the traumatic event were recurring, including a sense of reliving the experience, illusions, and sometime flashbacks with episodes; difficulty concentrating; difficulty falling or staying asleep; and effort to avoid activities or situations that arouse recollections of the trauma. In August 2002, the Veteran was afforded a VA examination for PTSD. It was recorded that he could remember three of three words immediately and two of three words after a five-minute delay. It was noted that there was no evidence of long-term memory deficits. It was opined that he had the capacity to meet activities of daily living. It was noted that there was no evidence of obsessions, compulsions, or panic symptoms; speech was clear and coherent without evidence of circumstantiality, tangentiality, or loose associations; speech was goal directed; hallucinations and bizarre delusions were denied. It was noted that the Veteran reported difficulties with concentration and impaired self-esteem. It was stated: “The most salient symptom that the veteran reported was his significant guilt, which seemed to be almost distort reality, it was so severe; for example, he reported that one incident where he became very upset when he was introduced to his daughter’s friends because he had some sort of distorted fear, that somehow he did something during the war, which might have caused one of their father’s death in Vietnam. It made no sense that this could somehow be a realistic fear on the part of the veteran.” It was recorded that the Veteran reported considering jumping off a bridge in 1976 and about three months before the examination, when a psychologist would not listen to him, he considered shooting himself. He reported during the past week having unwanted memories of the war three to four times and two nightmares that woke him. He reported having had flashbacks that had been so vivid that he totally dissociated, and they involved visual and auditory stimuli. He reported concentration difficulties, significant hypervigilance, and startle responses. The examiner diagnosed alcohol abuse, in remission, and depressive disorder, not otherwise specified. It was opined that the Veteran did not meet the criteria for PTSD using the CAPS semi-structured interview and the SCID scoring rule because he did not have a sufficient number of avoidant and numbing symptoms. The Veteran was assigned a GAF score of 55. In an October 2002 rating decision, service connection was denied, finding that there was no acquired psychiatric disorder related to the Veteran’s service. After reconsideration, the Veteran was afforded another VA examination in August 2003. In the August 2003 rating decision on appeal, service connection for PTSD was granted. During the August 2003 VA examination for PTSD it was noted that the Veteran was well-groomed, and he spoke with a normal rate and rhythm. It was noted that he tended to ramble and was frequently not goal directed in his thought processes, and tended to get off the subject to entirely other topics. He reported wondering what it would be like to not have all this on his mind anymore, and stated that he had visualized a gun on his night stand. There was indication of mild short-term memory impairment. It was noted that the Veteran reported having lost interest in past pleasures. He reported not having gone fishing in a year-and-a-half, having stopped keeping his yard trimmed and cut, and having stopped being neat and orderly with his clothes. It was recorded that he tried to stay home and avoid people. He reported a recent incident at a gas station when there was a confrontation with a young person that was successfully redirected by the station owner. He also reported a confrontation with a young person while waiting on line, during which he “actually put his hand on his gun but thought better of it and drove off.” It was recorded that since then he stopped carrying his guns in his vehicle. The examiner diagnosed PTSD, chronic, delayed onset, and depressive disorder, not otherwise specified. A GAF score of 55 was assigned. In a December 2004 statement, the Veteran wrote that he thought about suicide a lot but would not admit it to anyone because he was ashamed of it and felt it was a cowardly way out. He stated: “I always put my Sig Saur back in the nightstand and think of some reason to hang on another day.” He stated that at times he could not remember his grandson’s name. A mental health treatment note from May 2005 noted that the Veteran had episodic suicidal ideation without intent chronically. In May 2017, the Veteran was afforded a VA examination for PTSD, during which it was indicated that he had occupational and social impairment with deficiencies in most areas. The indicated symptoms for rating purposes included: depressed mood; anxiety; chronic sleep impairment; circumstantial, circumlocutory or stereotyped speech; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficultly in adapting to stressful circumstances, including work or a worklike setting. It was noted that he was neatly dressed with good hygiene and that he was fully oriented, polite, pleasant, and cooperative. His thoughts were tangential but organized, and speech was coherent. It was opined that the Veteran’s PTSD symptoms may contribute to marked impairment in his ability to respond appropriately to others and to changes in the work setting. It was opined that his PTSD symptoms would not preclude him from performing sedentary or physical tasks. Analysis and Conclusions 1. Entitlement to an initial disability rating of 70 percent, but no higher, for PTSD is granted. The Veteran essentially contends that his PTSD symptoms are more disabling than contemplated by the assigned disability ratings. The question for the Board is whether the Veteran’s disability picture more nearly approximates the criteria for a higher disability rating. Based upon a careful review of the foregoing, and addressing the issues raised by the Court in its January 2013 and December 2014 remands, the Board finds that the totality of the probative evidence of record establishes that the Veteran’s disability picture more nearly approximates an initial evaluation of 70 percent disabling. The Board notes that there is no distinction when evaluating a psychiatric disability as 70 percent disabling of whether suicidal ideation is passive or active. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). It is also noted that when considering impairment under 38 C.F.R. § 4.130, evaluation is not restricted to just the symptoms provided in the diagnostic code. Mauerhan v. Principi, 16 Vet. App. 436, 442–43 (2002). Rather, there must be the presence of symptoms with similar severity, frequency, and duration as those listed. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Here, the evidence suggests comingling of symptoms from cumulative effects of service as well as post-service head injuries and physical somatization of psychiatric symptoms. The record does not show mental health professionals separating out symptoms attributable to nonservice-connected disabilities, and so accordingly, the Board must attribute all the symptoms to the Veteran’s service-connected disabilities. See Mittleider v. West, 11 Vet. App. 181, 181–82 (1998) (per curium). The evidence shows that the Veteran has occupational and social impairment with deficiencies in most areas. Before leaving service the Veteran experienced PTSD symptoms of nightmares, cold sweats, loss of memory, dizziness, and fainting spells. In the 1970s the Veteran’s reexperiencing of being shot included loss of bowel and bladder control, and he exhibited startle responses and violent aggression. By the 1990s, he had been married and divorced six times—the shortest marriage being forty days and the longest two years. He had a criminal record for DWI, domestic violence, and assault. After having worked in the family business and becoming its owner, the Veteran lost that business due to inability to relate to customers, pain due to service-connected disabilities, deterioration after his third head injury, and his last divorce. The Board notes that the Veteran’s reporting and the recordation of his reporting, when viewed in the totality of the record, has been misleading. Due to shame and what appears to have been lack of insight, in the 1990s the Veteran underreported what other evidence of record establishes as his ongoing PTSD symptoms since prior to leaving service. His reporting improved through treatment. The reports of some of the mental health professionals have been, it appears, sometimes inaccurate or merely shortsighted when viewed in context of the whole record. This makes the evaluation of this case highly intricate. Taking a long view, the evidence establishes that at the latest the Veteran has experienced suicidal ideation since 1996, including thinking of jumping off a bridge and shooting himself, as well as keeping a handgun on his nightstand. During the August 2003 VA examination, the Veteran exhibited rambling and frequently not goal directed thought processes, getting off the subject in conversation. The Veteran appears to have near-continuous depression, and it was noted during the August 2002 VA examination that he manifests unrealistic fears. The Veteran had a long history of impaired impulse control as exhibited by angry outbursts and violence. The Veteran experienced flashbacks that were so vivid that he reported total dissociation, and his reexperiencing of being shot in Vietnam included loss of bowel and bladder function, which has increased in frequency over the years. The Veteran recounted not being able to adapt to the stress of going to a gas station or dealing with customers in his own business. He was not able to transition into sedentary work in insurance because he could not simultaneously handle the telephone and computer due to lack of concentration and memory loss. His history of six marriages and at least two live-in girlfriends shows that he is unable to establish and maintain relationships. Additionally, the January 1997 medical records from SSA show that the Veteran had significant impairment in social or occupational functioning based upon his symptoms of memory impairment, perceptual or thinking disturbances, change in personality, disturbance in mood, emotional lability and impairment of impulse control, and intermittent explosive disorder. The Board finds that a disability rating in excess of 70 percent is not warranted since at no point during the period on appeal has the Veteran demonstrated total occupational and social impairment. There is no evidence of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; or intermittent inability to perform activities of daily living. Indeed, it has always been noted that the Veteran has been well-groomed and attired, able to communicate effectively, been absent delusions or hallucinations, and able to tend to activities of daily living. The Veteran has consistently denied a suicide attempt and there is no evidence that he presented a persistent danger to others. There is no evidence of grossly inappropriate behavior. His own statements, overall, about his condition would support this finding. The Veteran has reported dissociation during flashbacks and an inability to remember his grandson’s name. While these symptoms may be associated with total occupational and social impairment, the severity, frequency, and duration of all the Veteran’s symptoms more nearly approximate an evaluation of 70 percent disabling. Furthermore, the assigned GAF scores were either 55 or 60, indicative of moderate symptoms. Accordingly, an increase in initial disability rating to 70 percent, and no higher, is warranted. 2. Entitlement to an earlier effective date for the award of TDIU prior to May 19, 2017, is granted. A TDIU was granted effective May 19, 2017. The Veteran contends that he was rendered unable to work due to his service-connected disabilities in 1995. The question for the Board, then, is whether, prior to May 19, 2017, the Veteran was able to secure or follow a substantially gainful occupation as a result of the effects of his service-connected disabilities. The Board finds that the probative evidence, medical and lay, establishes that effective August 2, 2002 (date of claim for service connection for PTSD), but no earlier, the effects of his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation based on the law. When the Veteran applied for service connection for PTSD in August 2002, he was service-connected for residuals of gunshot wound of left elbow region evaluated as 10 percent disabling and tinnitus evaluated as 10 percent disabling. He was also service-connected for residuals of fracture right wrist, hearing loss, scar of left check and posterior neck area, and fragment wounds of ears, which were evaluated as noncompensable. Service connection has been denied for otitis externa, fainting and passing out, and headaches. As addressed above, the Veteran’s service-connected PTSD is assigned an initial evaluation of 70 percent disabling. Accordingly, as of the date of the Veteran’s claim for service connection for PTSD, August 2, 2002, his service-connected disabilities met the schedular criteria for TDIU. See 38 C.F.R. § 4.16(a). The evidence establishes that the majority of the Veteran’s post-service employment was provided in a protected environment of a family-owned business, the exception being when he worked in insurance and initially when he worked in construction. After a two-year stint in insurance from 1975 to 1977, he worked in the family well drilling business from 1977 to 1994. Prior to his father selling him the business in 1982, it did well. The Veteran’s mother’s statement shows that, nevertheless, the Veteran struggled in life, including the work environment. Once his father’s oversight was not present, the Veteran was not able to manage the requirements of business operation despite years of experience in the work. Furthermore, the Veteran’s mother stated that she and his father assisted him financially. The evidence shows that multiple factors contributed to the Veteran losing the business, but a constant undercurrent and major contributor was the impact of his symptoms of PTSD and other service-connected disabilities. The evidence shows that the Veteran focused on his physical symptoms of his service-connected disabilities as primarily contributing to the loss of the business, such as pain in his left arm. Mental health professionals suggested that some of the Veteran’s claimed pain may have been as much somatization of his psychiatric symptoms as true pain from his in-service injuries. Since service the Veteran reported loss of memory and concentration issues, which is evident in the work context. He failed the insurance examination several times before becoming licensed; once licensed, he lost his job in insurance due to lack of focus, not meeting production requirements, and inability to manage the telephone and computer simultaneously. During the January 1996 VA examination, he reported problems with concentration on details. The examiner noted that he had difficulty concentrating on specific questions, but once focused, he answered appropriately. The evidence shows that while the Veteran was working on insurance licensure, he and a friend started a wrecking company. This failed, however, because the Veteran was unable to interact effectively with customers. The December 1995 VA examiner opined that the Veteran was capable of gainful employment. In July 1996, however, the clinical neuropsychologist Dr. J.F.C. stated that the Veteran took three to four times longer than normal to process complex mental tasks such that he was encouraged to find part-time employment with a forgiving and tolerant owner, which would be a protected environment. Dr. J.F.C. recommended that he not attempt to provide customer-service or marketing services and his cognitive status precluded productive or meaningful business operations, which were areas in which the Veteran had already failed. SSA records from January 1997 show that the Veteran was markedly limited in the ability to perform within a schedule, maintain regular attendance, and to be punctual. He was markedly limited in making simple work-related decisions and the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms. He was also markedly limited in working at a consistent pace without an unreasonable number and length of rest periods. It is clear that eventually the Veteran gained an appreciation that he had a problem with PTSD, and that he put in significant effort to find a way to become substantially employed. After working with Vocational Rehabilitation, however, it was determined that this was not possible, and in February 1997, SSA found him to be disabled based upon the same symptoms the Veteran reported for his service-connected PTSD. See Moore v. Derwinski, 1 Vet. App. 356, 359 (1991) (suggesting that much could be borrowed from federal circuit court decisions that address whether an SSA disability claimant is able to engage in “substantially gainful activity”). Based upon careful review of the foregoing, taking into consideration the Veteran’s education and occupational experience, the probative evidence establishes that an effective date of August 2, 2002, but no earlier, is warranted for an award of a TDIU. At the time the Veteran applied for service connection for PTSD his PTSD symptoms in conjunction with those of his other service-connected disabilities prevented him from working outside a protected environment and from successfully retraining to a less physically demanding job. Hence, his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation, and the claim for an earlier effective date for the award of a TDIU is granted. Under VA law, we can not grant the Veteran PTSD prior to the time he filed his claim. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney