Citation Nr: 18146704 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 12-01 255 DATE: November 1, 2018 ORDER Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), due to a single service-connected disability, is granted. FINDINGS OF FACT 1. The Veteran’s service-connected PTSD manifested by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking or mood; total occupational and social impairment is not shown. 2. The Veteran’s service-connected disability precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria are not met for a disability rating greater than 70 percent for the Veteran’s service-connected PTSD. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria are satisfied for entitlement to a TDIU rating. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16(a), 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from March 1968 to April 1971. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). INCREASED RATINGS, GENERALLY Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and the duration of the symptoms that accompany his service-connected PTSD. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). The Veteran filed an increased rating claim for his service-connected PTSD. As noted above, the Veteran’s entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his disabilities on appeal have been more severe than at others, and rate them accordingly. “The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.” Hart, 21 Vet. App. at 509. 1. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, DC 9411. Under the 9411 criteria, a 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit stated that “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.” “Although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of (occupational and social) impairment.” Id. Prior to August 4, 2014, one factor in evaluating psychiatric disorders was the global assessment of functioning scale (GAF). The scale was meant to represent psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996)(citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM - IV)). VA regulations were amended to remove references to the DSM-IV, and to replace them with references to the Fifth Edition of the same treatise (DSM-5). 79 Fed. Reg. 45,093-02, 45,094 (August 4, 2014). DSM-5 abandoned the global assessment of functioning score as a tool for evaluating the severity of psychiatric disorders. The Veteran filed the pending claim before the effective date of the regulatory change. Since the regulatory change implementing the DSM-5 criteria applies only to applications for benefits received by VA on or after August 4, 2014, the Board may consider any global assessment of functioning scores in the Veteran’s treatment records and examination reports. In April 2007, the Veteran underwent a VA examination to address the severity of his service-connected PTSD. Within the work history section, Dr. ER noted that, “the Veteran can do the job fairly well; it is just a problem getting along with people. He prefers to work by himself.” Within the social history, Dr. ER relayed that the Veteran did not have friends and only visited with family on occasion. Also, Dr. ER noted that, “(t)he claimant is able to follow instructions and handle detailed instructions. He has problems getting along with the public co-workers and supervisors.” After the Mental Status Examination, Dr. ER noted that, “(h)e was neatly groomed and dressed. He behaved normally. ... He was pleasant, cooperative and polite. He was not hostile or belligerent. ... Good grammar, good vocabulary, he was spontaneous and logical. Not inhibited or vague. No pressured speech, flight of ideas or loose associations. ... No hallucinations, delusions, paranoia or ideas of reference. He communicated well. He was not homicidal or suicidal. ... He had depression, loss of interest and loss of energy, anxiety and no panic attacks. He has a lot of irritability. … Judgment: Good. Insight: Poor” On April 28, 2008, a notation was made within the Veteran’s treatment records at the Durham VA medical clinic (VAMC). Therein, a VA provider recorded that, “‘work is trying to get rid of me.’ ‘I might have said something.’ Pt. continues to say he threatened fellow employee ‘I was going to chop his head off.’ Pt. states he spoke with another employee and sated ‘I am going to cut you up and put you in a barrel.’” Utilizing the DSM-IV criteria, a PTSD diagnosis was rendered. In May 2008, VA received correspondence from a PTSD Clinic Coordinator, DWM. Therein, DWM reported that, “(the Veteran) was consulted back to the PTSD Clinic for treatment regarding his PTSD, but was unable to identify any treatment goals around his PTSD symptoms. Also, DWM reported that, “(the Veteran) was continuing to experience problems at work due to his anger and was not receptive to working a program to deal with his alcohol abuse.’’ Additionally, DWM noted that, “(h)e continues to experience the full range of symptoms described above in regards to his PTSD, which is making it difficult to be effective in his work environment.” In September 2008, the Veteran underwent a VA examination to address the current severity of any acquired psychiatric disability. Utilizing the DSM-IV criteria, diagnoses were reported for PTSD and alcohol dependence. The Veteran was noted to have never married. He had no children and little contact with his family. He denied having any friends and reported that he worked, came home, sat in front of the television, and drank a few beers. He was employed fulltime as a housekeeper at a VA Medical Center. He reported that he had not been any fights for years. He reported anger mostly with his supervisors at work. He did not sleep well and had a poor appetite. The examiner observed that the Veteran was clean and appropriately dressed. His psychomotor activity was noted to be tense, but his speech was mostly quiet and minimally responsive. He was cooperative, attentive, and guarder. His affect was constricted and he reported irritable mood swings. He was oriented to person, time, and place. His thought process and content were unremarkable. There were no delusions or hallucinations and he understood the outcome of his behavior. He did not have inappropriate behavior. While there were no episodes of violence, he had homicidal thoughts as evidenced by a work related suspension resulting from him threatening a supervisor at work. His impulse control was fair. He was able to maintain minimum personal hygiene and did not have problems with activities of daily living. His remote and immediate memory were normal. His recent memory was mildly impaired as he sometimes forgot tasks, to-do lists, etc. He sought to avoid thoughts, feelings, or conversations associated with his inservice trauma. Ultimately, Dr. SKW concluded that Veteran demonstrated occupational and social impairment with deficiencies in most areas, such as work, family relations, judgement, thinking and mood with anger dyscontrol that lead to impulsivity. It was noted that there was not total occupational and social impairment due to the Veteran’s PTSD. In September 2010, the Veteran submitted a letter that addressed his PTSD. Therein, the Veteran revealed that, “I am on disability and have been seeing a doctor for quite some time now. The treatments that I have been receiving seem to not have any effect on my mental state. I have mood swings daily and they affect my personal relationships. It makes me feel uncomfortable and not like my normal self. I wake up in cold sweats when the temperature in the room is normal. I have post traumatic stress. I am nervous and anxious most of the time and it makes me not act like my normal self. The treatments I am receiving are not helping and I would appreciate all the help I can get.” In June 2011, the Veteran underwent a VA examination that considered the current severity of his service-connected PTSD. In the resultant report, the VA provider noted a PTSD diagnosis. He reported that he had a “bunch of friends that he hangs out with” drinking beer and playing cards and horseshoes. He denied a history of suicide attempts or violence/assaultiveness. He continued to have interrupted sleeping, sleeping no more than 2-3 hours at a time with only 4-6 hours per night. His sleep impairment did not really affect him; although at times, he may nap during the day. He was always on guard. It was noted that the Veteran was no longer employed and had retired at the age of 58. He was told that he could retire or be fired. He felt that his PTSD led to his retiring. He currently worked odd jobs doing lawn work or carpentry. On examination, the Veteran was casually dressed with adequate grooming. His psychomotor activity was normal. Similarly, his speech displayed normal tone, rate, and volume. He was cooperative and had a full range of affect. His attention was fair and he was oriented to person, time, and place. His though process was logical and goal directed. His thought content was appropriate to the content of the interview and he denied delusions or hallucinations. His judgment and insight were fair. There were no homicidal or suicidal thoughts or inappropriate behavior. Ultimately, the VA provider surmised that the Veteran demonstrated occupational and social impairment with the occasional decrease in work efficiency and intermittent periods of inability to perform occupation tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). In December 2011, the Veteran submitted his VA Form 9. Therein, the Veteran posited that, “70% rating is too low. 100% rating is appropriate in my case. I should have a total disability rating not partial rating. I am totally disabled for all areas of employment due to service-connected disability, PTSD. I am not capable of gainful employment.” As noted above, the Veteran is competent to report the PTSD symptoms he experiences; however, identification of the severity of his PTSD requires specialized eduction, training and experience, all of which simply falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4 (lay persons not competent to diagnose cancer). In July 2016, the Veteran underwent a VA examination that addressed the current severity of any demonstrated acquired psychiatric disability. In the resultant report, Dr. RLE reported a diagnosis for severe alcohol use disorder. Moreover, Dr. RLE opined that the Veteran’s severe alcohol use disorder resulted in total occupational and social impairment. At that time, Dr. RLE reported that the Veteran did not satisfy the full criteria for a PTSD diagnosis. Regarding the Veteran’s demonstrated symptoms, Dr. RLE recorded anxiety, suspiciousness, chronic sleep impairment, impaired judgement, and disturbances of motivation and mood. Importantly, Dr. RLE reported that, “(a)s the interview progressed, the claimant become less cooperative and angry. He became combative at the substance abuse history however self-reported facts up to that point in the interview were observed as clear and well-articulated. The interview was stopped after his mood and affect shifted dramatically and he refused to engage the interview process in a constructive manner. After 4 attempts to redirect the claimant’s answers regarding his PTSD symptoms, the interview was stopped. The claimant became somewhat combative . . .. The claimant was informed in a calm and respectful manner that the exam was over. At that moment, his combative nature turned to friendly and positive.” In August 2017, the Veteran underwent a VA examination that addressed the current severity of any demonstrated acquired psychiatric disabilities. In the resultant report, Dr. AKM noted diagnoses for 1) Other Specified Trauma and Stressor Related Disorder and 2) Unspecified Alcohol Related Disorder. For the first diagnosis, Dr. AKM noted that, “(t)his reflects a subcategory of PTSD such that the Veteran has clinically significant trauma-related symptoms but does not meet full criteria for PTSD based on symptoms in the past month.” Within the section that addresses differentiation of symptoms, Dr. AKM opined that, “the Veterans’ Unspecified Alcohol Related Disorder does not independently cause additional symptoms in this checklist.” Among the symptoms identified, Dr. AKM listed the following: anxiety; suspiciousness; chronic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; and, difficulty in adapting to stressful circumstances, including work or a worklike setting. Ultimately, Dr. AKM opined that, “the Veteran is assessed as having occupation and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood.” Pursuant to the Board’s June 2017 remand directives, Dr. AKM supplied an opinion regarding the Veteran’s Unspecified Alcohol Related disorder in August 2017. Therein, Dr. AKM reported that the Veteran’s alcohol disorder was 1) less likely than not incurred in the United States Marine Corps, 2) less likely than not proximately due to, or the result of, the Veteran’s PTSD, 3) clearly and unmistakably in existence prior the Veteran’s enlistment in the USMC, and 4) not aggravated beyond its natural progression by an in-service event, injury or illness. In her supporting rationale, Dr. AKM provided, “(p)lease note that the Veteran reported that he started drinking at age 15, prior to the military. He denied drinking to cope with PTSD symptoms and reported no change in drinking related to PTSD symptoms. As a result, the Veteran's PTSD and his Unspecified Alcohol Related Disorder are considered to be separate and unrelated disorders. It is less likely than not (less than 50% probability) that the Veteran's Unspecified Alcohol Related Disorder was incurred in/caused by military service and it is less likely than not (less than 50% probability) that the Veteran's Unspecified Alcohol Related Disorder is secondary to his PTSD, based on the Veteran's reports in multiple VA records that he started drinking at age 15 prior to the military. It is less likely than not (less than 50% probability) that the Veteran's Unspecified Alcohol Related Disorder was aggravated by his PTSD, based on the Veteran's reports that he is not drinking to cope with PTSD and that his alcohol use has not substantially changed over time in relation to PTSD.” Again, a 100 percent rating would be warranted for the Veteran’s service-connected PTSD in the presence of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. While the Board acknowledges that Veteran may be a danger to others in the workplace, his overall disability picture does not warrant a 100 percent rating under the DC 9411 criteria. The weight of the evidence does not show gross impairment in thought processes or communication. Ot the contrary, the various VA examinations have shown that the Veteran’s though process and content were appropriate and logical. He did not display inappropriate behavior. While he has had difficulty with supervisors and fellow employees in the past, the record does not show that he is a persistent danger to himself or others. During VA examination, he has denied any current homicidal or suicidal thoughts. The evidence does not show that he unable to maintain minimal personal hygiene or that he is oriented to time or place. While some difficulty with memory is noted, the evidence does not show memory loss for names of close relative, his own occupation, or his own name. Ultimately, after careful consideration of the entire claims file for the applicable claim period, the Board finds that the preponderance of the evidence does not support a disability rating in excess of 70 percent for the Veteran’s service-connected PTSD. Since the preponderance of the evidence is against this increased disability rating claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim of entitlement to an increased disability rating for his service-connected PTSD must be denied, because the preponderance of the evidence weighs against his claim. 2. Entitlement to a total disability rating based on individual unemployability (TDIU), due to a single service-connected disability, is granted. In April 2009, VA received the Veteran’s VA Form 21-8940. Therein, the Veteran initiated his claim for entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran revealed that his service-connected PTSD prevented employment as a house keeper at a VA medical center (VAMC). Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (West 2014). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. Entitlement to a total rating must be based solely on the impact of the Veteran’s service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341 (a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In October 2007, VA received the Veteran’s notice of disagreement (NOD). Therein, the Veteran posited that, “(m)y disagreement stems from the manifestations my PTSD impacts my employment. I am having such serious problems at work due to my PTSD that I may be in danger of being terminated.” In May 2008, VA received correspondence from a PTSD Clinic Coordinator, DWM. Therein, DWM reported that, “(the Veteran) was continuing to experience problems at work due to his anger and was not receptive to working a program to deal with his alcohol abuse.’’ Additionally, DWM revealed that, “(the Veteran’s) attendance was erratic in that he only came for two sessions and did not seem to have any motivation towards change despite problems that he was having in regards to his anger at work.” Also, DWM noted that, “(h)e continues to experience the full range of symptoms described above in regards to his PTSD, which is making it difficult to be effective in his work environment.” In November 2008, VA received correspondence from the Office Personnel Management (OPM). Therein, OPM informed the Veteran that, “your application for disability retirement under the Federal Employees Retirement System (FERS) has been approved . . ..” In April 2009, VA received additional correspondence from the Office of Personnel Management (OPM). Therein, OPM informed the Veteran that, “(o)ur records show that you claim you were disabled due to Post Traumatic Stress Disorder, Major Depression and Alcohol Dependence. However, in reviewing your medical records we have found you to be disabled for your position as a Housekeeping Aid due to PTSD.” In June 2011, the Veteran underwent a VA examination that considered the current severity of his service-connected PTSD. In the resultant report, the VA provider reported that, “Veteran reports that he retired from VA employment at age 58 as he was told he could retire or be fired. He states his inability to control his temper, which he feels is due to PTSD, led to his resigning. He states that he currently works odd jobs doing lawn work or carpentry. It is this writer’s opinion that this pt. is not unemployable due to his symptoms of PTSD and he, by self report, is able to work occasional odd jobs doing lawn work, carpentry or renting out his yard for horseshoe tournaments.” In December 2011, the Veteran submitted his VA Form 9. Therein, the Veteran posited that, “I should have a total disability rating not partial rating. I am totally disabled for all areas of employment due to service-connected disability, PTSD. I am not capable of gainful employment.” In June 2013, the Veteran supplied sworn testimony to the undersigned Veterans Law Judge (VLJ), via videoconference technology. When questioned about his symptoms in the workplace, the Veteran averred that, “I’d get angry a lot with, with the supervisor because they tellin’ me how to do something, which I already know what to do. And they’ll …be on my back and I, I just flip out.” In response to the VLJ’s query about the frequency of hallucinations or flashbacks, the Veteran responded, “(d)aily or weekly.” The Veteran’s hallucinations or flashbacks would last “couple days.” The Board notes that the Veteran’s report of frequent hallucinations is not supported by the various medical reports that show that he had no delusions or hallucinations. Nevertheless, given the severity of the Veteran’s PTSD, the Board cannot conceive of him performing appropriately in a work setting due to his service connected psychiatric disability. In April 2013, the Veteran submitted VA Form 646. Therein, the Veteran posited that, “(t)he Veteran feels his disability is severe to a point where it is keeping him from sustaining gainful employment.” In August 2017, the Veteran underwent a VA examination that addressed the current severity of any acquired psychiatric disabilities. In the resultant report, Dr. AKM noted that, “(t)he Veteran’s records reflect that he got in trouble for coming to work with alcohol on his breath, but got into substantial trouble due to threatening others in the work environment, such that occupational impairment is primarily related to PTSD.” Also, Dr. AKM reported that, “the Veteran reported that he has not been working at a full-time job since the last exam. He reported helping his two friends as they have health problems. The Veteran reported problems at his last job related to a supervisor and threatening the supervisor. The Veteran’s records reflect substantial problems with making multiple threats in the workplace and having irritability and anger outbursts at work.” Importantly, Dr. AKM reported that, “(p)lease note though that VA records from the timeframe in which the Veteran was still working at the VA documented problems with irritability and anger outbursts at other people at work, minimizing problems getting along with other people at work, and making threats of physical harm to multiple people at work. These problems with irritability and anger outbursts would likely cause substantial problems in any physical or sedentary work environment.” After thorough review and consideration of the Veteran’s claims file, the Board notes the VA provider’s June 2011 commentary that the Veteran “is able to work occasional odd jobs doing lawn work, carpentry or renting out his yard for horseshoe tournaments.” As noted above, the ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Ultimately, the preponderance of the evidence favors the Veteran’s claim for TDIU entitlement. Accordingly, this claim must be granted. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. This doctrine of reasonable doubt is applicable in this case because the preponderance of the evidence favors the Veteran’s TDIU entitlement   claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD RLBJ, Associate Counsel