Citation Nr: 18149988
Decision Date: 11/14/18	Archive Date: 11/14/18

DOCKET NO. 04-40 027
DATE:	November 14, 2018
ORDER
Prior to May 13, 2008, an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD), is granted.
Since May 13, 2008, a rating higher than 70 percent, for PTSD, is denied.
Entitlement to total disability based on individual unemployability (TDIU) prior to October 2, 2008, denied.
FINDINGS OF FACT
1.  Throughout the entire period on appeal, the Veteran’s PTSD has been manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as impaired impulse control; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships; total occupational and social impairment has not been shown.
2.   Prior to October 2, 2008, the evidence does not indicate that the Veteran’s service-connected disabilities alone preclude him from engaging in substantially gainful employment that is consistent with his education and occupational experience.
CONCLUSIONS OF LAW
1.  Prior to May 13, 2008, the criteria for an initial rating of 70 percent, but no higher, is warranted for PTSD.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Codes (DC) 9411 (2018).
2.  Since May 13, 2008, the criteria for a disability rating higher than 70 percent for PTSD are not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, DC 9411 (2018).
3.  Prior to October 2, 2008, the criteria for entitlement to TDIU are not met.  38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from April 1971 to February 1973.  These matters are on appeal from September 1997 and April 2002 rating decisions.
The PTSD claim was before the Board in June 2008, at which time it was remanded for further development.  Thereafter, in a May 2010 decision, the Board, in relevant part, continued the 50 percent rating for PTSD prior to May 14, 2008, and assigned a 70 percent thereafter.
In December 2010, pursuant to a Joint Motion for Remand (JMR-I) filed by the Veteran and the Secretary of Veterans Affairs (Secretary), the United States Court of Appeals for Veterans Claims (Court) vacated the May 2010 Board decision to the extent that it denied an initial rating higher than 50 percent for PTSD, prior to May 14, 2008, and a rating higher than 70 percent thereafter and remanded the matter back to the Board. 
In April 2011 and July 2012, the Board remanded this matter for further development.  Thereafter, in an August 2013 decision, the Board denied entitlement to an initial rating higher than 50 percent prior to May 14, 2008, and higher than 70 percent thereafter. 
In August 2014, pursuant to a second JMR (JMR-II), the Court vacated the August 2013 Board decision and again remanded the matter to the Board. 
In February 2015, the Board remanded the issue yet again for further evidentiary development, following the instructions in the Court’s August 2014 JMR. 
Concerning the TDIU claim, in February 2015, pursuant to a third JMR (JMR-III), the Court vacated the March 2014 Board decision to the extent that it denied the Veteran’s claims to entitlement to TDIU other than for the period from October 2, 2008, to December 9, 2009, and remanded the matter back to the Board. 
In June 2015, the Board remanded the issue yet again for further evidentiary development, to specifically include obtaining records from the Social Security Administration (SSA) following the instructions in the Court’s February 2015 JMR.  The SSA records were received in February 2018.
In February 2016, the Board remanded the claims for higher ratings for PTSD and a TDIU for the period from October 2, 2008 for further development and dismissed a claim of entitlement to TDIU after December 9, 2009.
Pursuant to the Board’s February 2015 and February 2016 remands for records regarding PTSD treatment from the Chapter 154 Vietnam Veterans of America, specifically from the “12 Mile” PTSD support group.  However, in an August 2016 statement in support of claim, the Veteran stated that he did not receive any therapy from the support group.  In December 2016, a Vet Center counselor confirmed that the Veteran never received readjustment to address combat-relate traumas nor did he ever attend group session that were held at the Vietnam Veterans of America Chapter 154, 12 Mile Road.  Accordingly, the requirements of the JMRs have been satisfied.
In October 2018, the Veteran submitted a waiver of Agency of Original Jurisdiction (AOJ) consideration of additional new evidence submitted to the Board after the issuance of the July 2017 Supplemental Statement of the Case.  38 C.F.R. § 20.1304 (c) (2018).
In the instant decision, the Board endeavors to address precisely what the Parties found deficient in the now vacated Board decisions.  The Board has left essentially unchanged those parts of the previous decision (for example the previous recitation of facts, for which no problems were indicated) that the Parties did not address in the JMRs.
1. Increased rating claim
The Veteran contends his service-connected PTSD is more severe than his ratings indicate.
Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity.  38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018).  When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2018).  Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3 (2018). 
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2018).  At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 
The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2018).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).
Evaluations for various psychiatric disabilities are assigned pursuant to 38 C.F.R. § 4.130.  Under the general rating formula for mental disorders, a 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9440.
A rating of 30 percent is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).
A rating of 50 percent is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130, DC 9411.
A rating of 70 percent is assigned where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.  
A 100 percent rating contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent 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. 
In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is 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) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32).
As will be discussed in further detail below, during the course of the appeal the Veteran in this case was assigned GAF scores from 45 to 85.
A GAF score in the range of 41 to 50 represents “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).” Id. 
A GAF scale score in the range of 51-60 indicates “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).” Id. 
A GAF score of 61 to 70 is defined as some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but the Veteran is generally functioning “pretty well,” has some meaningful relationships. Id. 
A GAF score of 71-80 is defined by symptoms that are transient and expectable reactions to any psychosocial stressors. Id. 
A GAF score of 81-90 indicates absent or minimal symptoms. Id.
Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV.  The amendments replace those references with references to the recently updated Fifth Edition (DSM-5).  See 79 Fed. Reg. 149, 45094.
The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. Id.  VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014.  See 80 Fed. Reg. 53, 14308 (March 19, 2015).  The RO most recently certified the Veteran’s appeal to the Board in April 2013 therefore the claim is governed by DSM-IV.
In reviewing the evidence of record, the Board will consider the assigned GAF scores; however, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability.  Rather, GAF scores must be considered in light of the actual symptoms of the Veteran’s disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126 (a) (2018).  We also carefully look at the Veteran’s statements.
The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive.  The Board need not find all or even some of the symptoms to award a specific evaluation.  Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002).  On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned.  Mauerhan, 16 Vet. App. at 443.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has embraced the Mauerhan Court’s interpretation of the criteria for rating psychiatric disabilities.  Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).
The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) provided additional guidance in rating psychiatric disability.  See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).  Specifically, the Federal Circuit emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words “such as” that precede each list of symptoms. Id. at 2.  It held 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.  Id. at 4.  Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating.  Id. at 2.
When it is not possible to separate the effects of a nonservice-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998). 
The Board notes that during the course of the appeal the Veteran was awarded a temporary total disability rating based on convalescence from July 29, 1997 to September 30, 1997; October 7, 1997 to October 31, 1997; March 4, 1998 to March 30, 1998; December 2, 1998 to December 31, 1998; February 28, 2003 to March 31, 2003; November 9, 2005 to December 31, 2005; and from June 1, 2009 to June 30, 2009 for treatment of his PTSD.  Medical records from these periods of convalescence will not be considered because the Veteran is already in receipt of a total disability evaluation during this time.
Turning to the merits of the claim, VA medical records include a July 1997 report which shows that the Veteran reported a history of PTSD, depression, and polysubstance abuse.  He noted feeling suicidal and homicidal, detailing that the previous day he took a mixture of heroin, crack cocaine, marijuana, and Tylenol #3 in attempt to commit suicide by drug overdose.  The Veteran reported experiencing blackouts, auditory hallucinations, and recurrent recollections of distressing events.  He reported that his mood was sad and that he experienced some anger, flashbacks, startle response, avoidance behavior, sleep impairment, impaired impulse control, and hypervigilance. 
An April 1998 VA medication management note revealed diagnoses of chronic PTSD, alcohol abuse in remission, opioid dependence in remission, cannabis abuse in remission, and antisocial personality disorder. 
On July 1998 VA PTSD examination, the Veteran complained of being addicted to heroin, cocaine, and alcohol, with sobriety over the previous year.  He reported having a “fine” mood; sleeping “extremely well”; and being employed as a prep cook.  The Veteran reported experiencing occasional nightmares, but denied experiencing flashbacks, suicidal ideation, homicidal ideation, auditory hallucinations, hyperarousal, a sense of a foreshortened future, and a sense of isolation, or recurrent, intrusive, or distressing recollections.  The Veteran discussed his personal history, indicating that he was divorced and that his two children were being raised by his sisters.
On mental status examination, the Veteran was alert, oriented, cooperative, and had good hygiene and grooming.  There was no motor agitation and the Veteran did not have any formal thought disorder.  The Veteran’s affect had a normal range and intensity.  He was euthymic and reactive, without suicidal or homicidal ideation.  There were no psychotic symptoms and the Veteran did not have any cognitive impairment.  The examiner listed diagnoses of heroin dependence in remission, cocaine and alcohol abuse in remission, and antisocial personality disorder.  The examiner assigned a GAF score of “about 65,” noting that the Veteran did not experience flashbacks, avoidance behavior, hyperarousal, or sleep impairment when on medication. 
On August 1999 VA PTSD examination report stated that the Veteran’s medical records had been reviewed.  The Veteran denied experiencing a depressed mood, auditory hallucinations, visual hallucinations, suicidal ideation, and homicidal ideation.  He reported sleeping well, good energy, able to control his anger, and having intrusive thoughts of traumatic incidents that were not distressing, as he was able to control his feelings due to medication.  The Veteran stated that he was currently employed as a truck driver and maintenance person as well as held the position of treasurer for Narcotics Anonymous (NA).  He reported “good contact” with his sister.  It was noted that he was currently on probation until 2000 for assault and battery which occurred in October 1998.  His previous probation was noted to be for carrying a concealed weapon, heroin, and retail fraud.  The Veteran denied experiencing sleep impairment, impairment of impulse control, and impairment of concentration. 
On mental status examination, the Veteran was in no acute distress and had no abnormal body movements.  He was cooperative, his mood was euthymic, and his affect was appropriate.  The Veteran’s speech was spontaneous, coherent, and relevant.  There were no signs of psychosis, suicidal ideation, or homicidal ideation.  The Veteran was alert and oriented to person, place, and time.  He could remember “one out of three after 5 minutes.”  The Veteran’s general fund of knowledge, insight, and judgment were fair.  He did well with abstract reasoning and proverb interpretation.  The examiner diagnosed polysubstance dependence in full sustained remission and assigned a GAF score of 65.  The examiner highlighted that the Veteran was currently employed, functioning pretty well, had a meaningful relationship with his sister, and was participating actively in NA.  The examiner indicated that the Veteran did not meet the full criteria of PTSD.  The Veteran reported that his symptoms had subsided since he stopped using illicit drugs two years before.  It was noted that the Veteran’s condition may be due to his substance abuse problems and personality when he was having anger outbursts and behavioral problems which started before he went to the service.
During a March 2000 Board hearing, the Veteran asserted that he suffered from nightmares and flashbacks, but was a little “more at ease with it now.”  He reported having trouble getting along with people and being currently employed as a truck driver.  SSA records listed a primary diagnosis of mixed drug dependence with no established secondary diagnosis.
On April 2002 VA mental disorders examination, the examiner stated that the Veteran’s claims file and medical records had been reviewed.  The Veteran reported that he got along well with all three of his siblings, had a poor relationship with his eldest daughters, and had a distant but amicable relationship with his younger daughters.  He was employed and worked 40 hours per week as a truck driver in the “family business.”  The Veteran stated that he had held that job for the previous three years, which was his longest period of stable employment, and that he had purchased a home six months before.  He had not taken psychoactive medication for the previous 1.5 years.  The Veteran reported nightmares approximately once every two months, anxiety during thunderstorms due to memories of combat, and avoidance of war movies and Veterans’ organizations.  It was unclear whether the Veteran had blocked memories of traumatic events.  He denied experiencing sleep impairment and reported that he had not had difficulty with impulse control since becoming sober five years before.  He experienced strong, intrusive angry thoughts, but could control them with a conscious effort.  The Veteran denied difficulty with concentration and there was no evidence of hypervigilance.  He reported being uncomfortable in crowds when he was alone, but not when accompanied by friends or family members.  The examiner stated that the Veteran’s PTSD symptoms were “significantly distressing to him, but they do not appear to be causing social or vocational impairment at this time.”  The Veteran reported that he held several positions of responsibility in NA, including sponsor for multiple people, treasurer, and another leadership position. 
On mental status examination, the Veteran was neatly dressed, groomed, and fully cooperative.  His mood was euthymic and his affect was consistent and within normal limits.  The Veteran’s eye contact was good and he was oriented to person, place, time, and purpose.  There were no abnormalities of speech and the Veteran denied experiencing auditory hallucinations, visual hallucinations, and suicidal and homicidal ideations.  He denied experiencing obsessive or ritualistic behaviors that interfered with routines activities.  He denied short-term memory impairment, but reported “questionable” long term memory.  No memory deficiencies were noted by the examiner.  The examiner stated that the Veteran did not appear to be exaggerating his symptoms and was managing many of his previous symptoms such as anger control, social estrangement, and a negative outlook.  The examiner stated that the Veteran experienced clinically significant symptoms of anxiety, listed diagnoses of PTSD as well as opioid dependence in remission, and assigned a GAF score of 70. 
VA treatment records dated in March 2003 showed the Veteran was attending individual as well as group psychology therapy; was working on his anger; remained employed full time in the family business; and volunteered with Narcotics Anonymous (NA).  An additional treatment record dated in March 2003 showed an assigned GAF score of 50/52. 
On April 2003 VA PTSD examination, the examiner stated that the Veteran’s claims file and medical records had been reviewed.  The Veteran reported that he had been employed as a truck driver at his nephew’s business for the previous four years and presently worked about 40 hours per week.  The Veteran reported that he was doing well at his job.  He reported that he was heavily involved with NA, both locally and nationally, and it was his main activity outside work.  The Veteran complained of nightmares, intrusive thoughts, and isolative behavior.  He reported difficulty with anger, irritability, environmental triggers for symptoms, and sleep impairment.  The Veteran reported an increase in symptoms since the start of the Iraq war.
On mental status examination, the Veteran was neatly dressed and articulate with speech of normal form and rate and anxious mood.  The Veteran’s affect was appropriate and he had no hallucinations or delusions.  The Veteran did not have any thought disorder or suicidal ideation, and he had good insight.  The examiner diagnosed PTSD and opioid dependence in remission for six years as well as assigned a GAF score of 65.  The examiner stated that the Veteran’s symptoms caused some mild social impairment, but that in general he could work well, had some meaningful interpersonal relationships, and was very active in NA; criteria which warrant the assignment of a 10% rating.
On March 2004 VA PTSD examination, the Veteran complained of often feeling frustrated and angry.  He reported that he did not like or get along with people.  The Veteran reported occasional sleep impairment and described his mood as a three on a scale from one to ten, with ten being the worst.  The Veteran denied feeling worthless and any sustained sad mood.  He reported experiencing nightmares.  He reported that he’d been working for the previous six years at a family business owned by his nephew.  The Veteran stated that he was not on any psychiatric medications.
On mental status examination, the Veteran was alert, oriented, and mesomorphic.  He was in no acute distress, had no motor agitation, and exhibited fluent speech, somewhat dysphoric affect, fair insight, and fair judgment.  The Veteran did not have suicidal ideation, homicidal ideation, psychotic symptoms, or gross cognitive defects.  The examiner diagnosed polydrug dependence in remission and PTSD by history as well as assigned a GAF score of 70.  The examiner stated that the Veteran had some nightmares and anxiety symptoms, but was “able to hold a job and [was] able to interact with people, with some impairment in his social interaction.” 
During a May 2005 RO hearing, the Veteran reported that he continued to have anger, flashbacks, dreams, and sleeplessness.  He indicated that he had not seen his two eldest daughters in many years, but that he was in the lives of his four children even though it was daily.  He commented that he had recently had a “pretty bad” accident at work, did not often miss work even when he did not want to go, because of his responsibilities, lived with his parents, and was experiencing irritability and mood swings. 
A November 2005 VA psychiatric note stated that the Veteran worked 60 hours per week as a family-owned business until his ankle was crushed in March 2005 in a work-related accident.  He reported that due to the injury he was unable to work and that he felt more depressed with a lot of time on his hands.  The Veteran complained of more frequent and intense nightmares and flashbacks since his injury with fewer activities with NA.  A December 2005 VA treatment record showed a diagnosis of PTSD.  It was noted that the Veteran was feeling better with improved attitude and awareness.  He discussed some thoughts about suicide without intent or plan but denied homicidal ideation and auditory hallucinations.  The examiner assigned a GAF score of 55 on admission and on discharge. 
SSA records include a February 2006 functional capacity assessment that notes the Veteran’s history of PTSD, but also notes that he could work until he injured his foot.  On psychological evaluation, major depression, PTSD, pain disorder, personality disorder, and substance abuse were diagnosed.  The Veteran presented as emotionally intense and on edge, but could relate, communicate, and cooperate adequately.  His mental functions were grossly intact.  He was not psychotic or suicidal.  He was paranoid and hypervigilant around others, but still attended NA meetings and sporting events.  He could follow instructions and respond appropriately to authority.  The preponderance of evidence indicated that the Veteran retained the mental capacity to sustain a routine of simple work activity.  The reviewer stated that he may be limited in meeting more complex and detailed work demands, but did not report too much.  He could complete his personal care, but was reported to have anger issues and was paranoid.  He was diagnosed with PTSD, major depression, recurrent without psychotic features severe; pain disorder and a history of substance abuse, in remission.  He was alert and oriented times three, but appeared capable of performing simple unskilled work.
The SSA records include a January 2006 Michigan Disability Determination Service psychiatric/psychological medical report which states that he required VA inpatient intervention 1 to 3 times yearly for PTSD and poor anger management.  He was at high risk for physical acting out and had a history of assaultive behavior.
He prided himself on his work quality, but was unable to manage his very physically active job due to pain, job loss, and financial problems which magnified chronic depression, irritability, and self-deprecating thoughts.  He had frequent flashbacks of his time in service and routinely admitted himself to the VA inpatient PTSD unit when he was becoming too aggressive or his nightmares became more prominent.  He prided himself on being aware of his need for treatment and about every 12 to 18 months needed to go back in.  He was divorced due to his erratic and violent behaviors.  He lived with his mother, stepfather, and brother who were very supportive of him.
He worked for years at the family stone business.  However, in March 2005 he suffered a work-related injury to his foot.
He had serious problems relating to people and was easily angered if frustrated or criticized.  He had a history of aggressive assaultive behavior.  On examination, his mood was on edge, but controlled.  However, he had difficulty interacting with supervisors, co-workers, and customers. 
On mental status examination, his presentation was hyperverbal and emotionally intense.  He made good eye contact.  Hygiene and grooming were good.  He was oriented times three.  He related intensely, but was cooperative.  He had high levels of emotion and rage which appeared marginally controlled.  He endeavored to be a good worker in AA involved in contributing to the community.  However, he had very low tolerance for interpersonal contact.  This interfered in his comfort and success in social interactions.  He appeared to be constantly “working the program.”  High levels of social support from his family and VA were important to reduce his risk for acting out toward others.  He denied auditory hallucinations and active suicidal intent, but consistently had intrusive self-critical and suicidal thought.  He denied homicidal thoughts, but easily crossed over from anger to rage to assaultive reactions.  At times, he felt worthless, helpless, and hopeless.
A May 2006 VA outpatient neuropsychology consultation report stated that the Veteran had been employed until a crush injury to the right ankle, for which he had since been determined to be medically disabled.  On clinical interview and mental status examination, the Veteran was cooperative, compliant, and responded with coherent and goal-directed responses.  The Veteran had no difficulty understanding directions.  The examiner detailed that the Veteran became increasingly angry as the neuropsychological evaluation progressed, being aware of failed performances and responding to them with frustration.  His affect was broad, and his mood was typically angry, expansive, and irritable.
On testing, the Veteran had mild impairment of short-term memory, particularly when the material lacked structure or context.  He reported minimal distress or difficulty in coping with stressors.  The examiner stated that testing showed the Veteran was agitated, depressed, confused, withdrawn, and likely psychotic, with tangential thinking.  It was noted that individuals with this profile were unpredictable and may rely on alcohol and drugs to face the world, otherwise feeling ruminative and doubtful.  The examiner summarized that the Veteran’s overall abilities fell into the low average range, with impairment of new learning, memory, complex problem solving, and emotional functioning. 
In an April 2008 Informal Hearing Presentation, the Veteran’s representative asserted that the Veteran sought treatment for his service-connected PTSD in support groups, individual therapy, and numerous month-long stays in VA hospitals since 1997.  It was indicated that the Veteran had experienced increased symptoms in the last four to five months, including intrusive thoughts, depression, nightmares, flashbacks, and suicidal thoughts.
In a May 14, 2008, VA outpatient psychiatric note, the Veteran reported that he could cope with his symptoms without psychiatric medication.  He reported significant financial stressors since his leg was crushed, resulting in an inability to work.  The Veteran stated that thunderstorms frightened him.  He experienced depression, social withdrawal, nightmares, fatigue, low self-esteem, low sex drive, and feelings of worthlessness.  The Veteran also reported suicidal ideation without any plans or intent as well as racing thoughts, tension, angry outbursts, worries, fears, social anxiety, obsessive thinking, and flashbacks.
On mental status examination, the Veteran was neat, clean, casually dressed, pleasant, and cooperative, but his mood was depressed.  No abnormalities were noted in affect, speech, thought content, thought process, or cognitive abilities.  The Veteran denied auditory or tactile hallucinations, but reported “seeing shadows.” The examiner diagnosed PTSD and assigned a GAF score of 60. 
VA outpatient mental health notes dated from June to October 2008 stated that the Veteran behaved appropriately and was active in group therapy and joined a VA Compensated Work Therapy Program (CWT). 
In an August 2008 VA PTSD examination report, the Veteran reported that his PTSD symptoms had become worse since a work-related injury in March 2005.  He reported that as he was no longer working; usually stayed by himself all day; had intrusive thoughts three times per week; had nightmares two times per week; and suffered from sleep impairment.  The Veteran stated that he experienced flashbacks about three to four times per week, with chronic anxiety, hypervigilance, and irritability.  He reported depression since March 2005 with fleeting suicidal ideation approximately four to five times per week, but with no plans to act on them.  The Veteran complained of memory impairment.  It was noted that he currently lived with his parents; stayed in his room for most of the day; attended Alcoholics Anonymous and NA meetings for 1.5 hours each day; and ran a NA group at a prison once per month.  He reported that he also attended a PTSD group once per week, but otherwise did not go out, did not have a social life, and did not like crowds. 
On mental status examination, the Veteran looked anxious and hypervigilant.  His mood was depressed and his affect was congruent, mildly depressed, and constricted.  The Veteran’s thoughts were logical and goal-directed, and he did not experience auditory or visual hallucinations.  He reported fleeting suicidal ideations, but denied any at the time of the examination, and denied homicidal ideation.  The Veteran was noted to have a good fund of knowledge was good, impaired memory, intact concentration, good insight, and fair judgment.  After reviewing the claims file and examining the Veteran, the examiner diagnosed chronic PTSD and assigned a GAF score of 50.  The examiner stated that the Veteran’s depressive symptoms had increased since his March 2005 work accident, due to an inability to work.  The Veteran was noted to continue to have sleep impairment, flashbacks, panic attacks, intrusive thoughts, and be socially isolative with no friends or significant relationships.  However, the Veteran was noted to be logical and oriented.  It was indicated that he did not have any obsessional rituals; stereotyped or circumlocutory speech; illogical, obscure, or irrelevant speech; delusions; hallucinations; disorientation to time or place; and was not in persistent danger of hurting himself or others. 
A March 2009 VA psychology telephone contact note, the Veteran was noted to work at a VA CWT; attend near daily NA meetings; live with his parents; and works mostly alone in a warehouse or “safe haven” six days a week from 0730 to 1300.  He complained of hypervigilance, difficulty sleeping, flashbacks, depression, thoughts of suicide, and nightmares two to three times a week.  The interviewer noted that the Veteran denied any recent suicidal ideation/homicidal ideation or any plan or intent to harm himself or anyone else.  On mental status evaluation, there was no evidence of impaired orientation.  The Veteran was noted to have grossly intact memory; clear and coherent speech; and logical thought process with no evidence of thought disorder.  There was no evidence of paranoia, delusional thought system, or audio/visual hallucinations.  The Veteran was noted to request admission to residential treatment to enhance his coping skills and improve functioning.  The examiner diagnosed PTSD and assigned a GAF score of 50.
A June 2009 VA hospital discharge report stated that the Veteran had been hospitalized from June 3, 2009, to June 25, 2009, with a diagnosis of PTSD.  The examiner assigned a GAF score of 45/47.  The Veteran was noted to complain of being depressed, isolating himself, having sleeping problems with nightmares and night sweats, hypervigilance, anxiety, relationship problems, increased startle response, short term memory problems, flashbacks, problems controlling his anger, concentration problems, emotional numbing, and intrusive thoughts.  The Veteran again received group and individual therapy during inpatient admission.  On discharge, the Veteran was returning to daily living; considered competent; and was free of any suicidal or homicidal ideation or delusions.  The Veteran’s memory, concentration, attention span, impulse control, insight, and judgment were all noted to be fair.  A July 2009 VA treatment record showed an assessment of PTSD with some mood instability but no suicidal ideation.  The examiner assigned a GAF score of 80.
In a February 2010 Informal Hearing Presentation, the Veteran’s representative asserted that the Veteran’s symptoms had worsened since his last examination and he was entitled to an increased rating.  It was further noted that the Veteran had not worked for over five years and that his symptoms were severe enough to indicate that he may be unemployable due to his PTSD. 
VA treatment notes dated in 2010 showed continued findings of anxiety and chronic PTSD.  A January 2010 CWT individual note showed an assigned GAF score of 70.  In a November 2010 VA psychiatric progress note, the examiner listed an assessment of PTSD and assigned a GAF score of 85. 
On October 2012 VA Initial PTSD VA examination, the examiner listed diagnoses of anxiety disorder, not otherwise specified, recurrent major depressive disorder in partial remission and polysubstance dependence in sustained remission.  However, the examiner indicated that the Veteran did not have a diagnosis of PTSD that conformed to DSM-IV criteria based on the current evaluation.  The examiner indicated that depressive symptoms included some guilt feelings, periodic poor sleep maintenance (but eight hours sleep with medication), and sadness.  It was further noted that anxiety symptoms included avoidance of some crowds (but attends baseball games), nightmares two times a week, angry reactions (but does not act out), and startle reaction.  The examiner marked that the Veteran suffered from occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation; criteria which warrant the assignment of a 30% rating.  It was further noted that it was not possible for the examiner to differentiate what portion of the Veteran’s occupational and social impairment was caused by each diagnosed mental disorder.  The examiner assigned a GAF score of 61.
The Veteran described having a good relationship with two of his children; living with his parents; maintaining a friendship with his NA sponsor; going to jails to talk with inmates about recovery; attending NA five to seven times per week; attending baseball games; and being “pretty easy to get along with” at work.  He discussed his occupational history, noting that starting in December 1997 he worked for Waste Management hauling garbage as temporary worker for a couple of months.  He reported that he then found work at a steakhouse for six months before transferring to another steakhouse for two months before was fired because of anger problems.  The Veteran indicated that his nephew then hired him to work at his granite company for three to four years before he had an accident resulting in his left leg being crushed.  He reported that he did not work from 2004 to 2009 until he completed the CWT Program at VA, becoming a Supply Technician for 16 months.  He indicated that he was then offered full-time employment and has worked in that job for almost three years.
For VA rating purposes, the examiner found that the suffered from depressed mood, anxiety, panic attacks that occurred weekly or less often, periodic guilt, disappointment at lack of life partner, and decreased joy or pleasure in life due to his diagnoses.  It was again indicated that the Veteran had some symptoms of PTSD, but did not meet full criteria.  After reviewing the Veteran’s claims file and VA medical records, the examiner listed the following mental status examination findings: focused; articulate in interview; displayed appropriate speech, flow of ideas, and social skills; and pleasant, wide ranging, and appropriate affect.  The examiner specifically noted that the Veteran’s primary focus during the interview was on the difficulty in obtaining his compensation from VA, which appeared to be his main, current stressor.  It was indicated that the Veteran did not suffer from disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, impairment in thought processes or communication, delusions, hallucination, grossly inappropriate behavior, inability to perform activities of daily living, danger of hurting himself or others, or disorientation to time or place.
Regarding the Veteran’s present functioning, the examiner noted that the Veteran was presently working with reports of good performance and attendance record.  The Veteran was noted to report satisfactory relationships with friends, family, and co-workers.  He discussed continued volunteer work and frequent attendance of NA meetings, maintaining a relationship with a sponsor.  Although the Veteran continued to have some symptoms, the examiner indicated that he was functioning well with some meaningful activities and personal relationships. 
In a May 2013 Informal Hearing Presentation, the Veteran’s representative asserted that there were no additional arguments to present regarding the Veteran’s scheduler rating for service-connected PTSD. 
VA treatment records dated from January 2014 to December 2014 show that the Veteran had normal speech and denied active or passive suicidal or homicidal ideations.  He denied depression, mania, anxiety, and hallucinations.  GAF scores ranged from 51 to 70.  He had a constricted affect and anxious mood.  Memory was good with fair insight.  His thought process was goal-directed with fair insight and good judgment.  He had a little anxiety and pressure at work.  In September 2014, he was employed full-time at VA.
Records dated from March 2015 to October 2015 show that on mental status examination affect was constricted with fluent speech.  Thought process and association were goal-directed with fair insight and good judgment.  Mood was depressed reactive.  He did not report perceptual disturbance and denied suicidal and homicidal ideations.  He had GAF scores from 60 to 70.
Records dated from December 2016 to June 2017 show that on mental status examination, he was cooperative.  Mood and affect were constricted and anxious with fluent speech.  However, he had continued depression.  He denied suicidal and homicidal ideations.  Thought process was goal-directed with fair insight and good judgment.  He had more nightmares and flashbacks.  He was also more isolated.  He was oriented time three.
On February 2018 VA PTSD DBQ examination, the psychologist diagnosed PTSD and heroin use disorder, moderate, sustained remission.  However, the psychologist opined that since the heroin use is in sustained remission, all symptoms are attributed to his PTSD diagnosis.  The psychologist opined that his occupational and social impairment was best summarized by occupational and social impairment with reduced reliability and productivity; criteria which warrant the assignment of a 50% rating.
Regarding social, marital, and family history, he lived with and took care of his mother.  He has three daughters and one adult son; he reported a strained relationship with his son, but a close relationship with his daughters.  He reported limited social activities including bowling once a week and NA fellowship that he attended twice a month.  He stated he went to the jail to talk to inmates a couple of times a month.  He had two friends that he went to dinner with after NA meetings.  He regularly saw one of his sisters and saw the other sister during the holidays and at family get-togethers.
Regarding occupational and educational history, he reportedly retired from a VAMC after 10 years as a medical supply technician in April 2017.  He retired due to increased anxiety in the last few months of employment.
He reported that he was hospitalized in a psychiatric inpatient center four times between 1997 and 2010.  However, he denied that any of the hospitalizations were due to suicidal ideations.  Rather, he stated that his physicians recommended he admit himself into a psychiatric inpatient unit due to his increased anxiety, but did not elaborate and mentioned once there was a road rage incident that caused a provider to recommend inpatient care.  He stated that each time he was hospitalized, he was in the hospital for a total of 22 days.  
He stated that he had intrusive thoughts/images and nightmares on a frequent basis.  He also had an angry outburst directed at another driver during a road rage incident two weeks prior to the examination.  He informed the psychologist that he was uncertain of the frequency of the outbursts.  However, per his report it was suggested that the instances happened once every two years or less frequency which did not meet the criteria above.  
On mental status examination, he was alert and oriented to person, place, time, and situation.  His mood was euthymic and his affect was congruent with mood.  Speech was normal.  Thought content revealed no unusual thought processes, delusional qualities, or flights of ideas.  Attention and concentration were within normal limits.  He demonstrated no evidence of impairments with immediate or remote memory.  His judgment and insight appeared intact.  Finally, he denied suicidal and homicidal ideations and auditory and visual hallucinations.
It was noted that he did not meet the criteria for difficulty in adapting to stressful circumstances, including work or a work-like setting, criteria which support the assignment of a 70 percent rating, based on the rationale that he performed his work satisfactorily until he smelled burnt flesh due to malfunctioning equipment.  He did not request a transfer or move to another unit, because he was eligible to retire.  
The psychologist diagnosed PTSD and heroin use disorder, moderate, sustained remission.  However, the psychologist opined that since the heroin use is in sustained remission, all symptoms are attributed to his PTSD diagnosis.  The psychologist opined that his occupational and social impairment was best summarized by occupational and social impairment with reduced reliability and productivity; criteria which warrant the assignment of a 50% rating.  His PTSD symptoms included depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships
Resolving reasonable doubt in the Veteran’s favor and considering the newly received SSA records, the Board finds that the record reflects that Veteran is entitled to an initial disability rating of 70 percent for his PTSD for the entire period on appeal.  Since VA examination findings, the Veteran’s statements in support of the claim, and treatment records show that the Veteran experienced deficiencies at work, in mood, and difficulty in adapting to stressful circumstances (including work or a work-like setting) during the entire period of the appeal, the Board can determine no distinction in the Veteran’s psychiatric symptoms prior to May 14, 2008, the date of a VA outpatient psychiatric note which served as the basis for the assignment of the 70 percent rating.  Accordingly, the Board finds that prior to May 14, 2008, a rating of 70 percent, but no higher, is warranted for PTSD.
The Board, however, finds that a higher evaluation of 100 percent since May 14, 2008, is not warranted.  Specifically, the evidence does not demonstrate total occupational and social impairment, nor does it demonstrate any of the symptoms listed in the 100 percent rating category.
Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
2.  TDIU prior to October 2, 2008
The Veteran has alleged that he is unemployable due to his service-connected PTSD.  See, June 2012 statement.  In July 2012, the Board determined that the issue of entitlement to a TDIU was part and parcel of the determination of the evaluation for the Veteran’s service-connected PTSD and was properly before the Board.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 
The Board notes that in a March 2014 decision, the Board granted a TDIU for the period from October 2, 2008, to December 9, 2009.  Based on the Veteran’s withdrawal of his appeal as to the issue of entitlement to TDIU after December 9, 2009, in a February 2016 decision the Board dismissed the issue of entitlement to TDIU since December 9, 2008.  Accordingly, the only remaining period on appeal for consideration of TDIU is the period from July 7, 1997 to October 2, 2008.
A TDIU may be granted upon a showing that a Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities.  See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018).  Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018).
TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability.  38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2018).  In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered.  Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341 (a) (2018).
Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold.  Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop.  38 C.F.R. § 4.16 (a).  Whether a veteran is capable of more than marginal employment must be considered even if the veteran is not working.  See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016) (concluding that the terms “substantially gainful occupation” and “substantially gainful employment” in § 4.16 are “synonymous”).
Prior to October 2, 2008, the Veteran’s service-connected disabilities were PTSD, now rated as 70% disabling for the entire appeal, and residuals of stab wound scars to the back, rated as noncompensable (zero percent).  Accordingly, the Veteran met the minimum schedular requirements for TDIU. See 38 C.F.R. § 4.16 (a).
Turning to the merits of the claim, in addition to the evidence above, the Veteran was initially employed as a prep cook at various steakhouses in 1998 before he worked as a truck driver for his nephew’s granite company starting in 1999.  Evidence of record detailed that the Veteran experienced an ankle crush injury while on that job in March 2005 and was then considered “medically disabled.”  VA treatment notes dated in 2008 showed that the Veteran joined a VA Compensated Work Therapy Program (CWT).  In a March 2009 VA psychology telephone contact note, the Veteran was noted to work in a CWT program at the Detroit VA.  It was indicated that he worked mostly alone in a warehouse or “safe haven” six days a week from 0730 to 1300. 
In a September 2012 statement, the Veteran reported that he had been unemployed and unable to work from July 2004 through December 9, 2009.
In an October 2012 VA Initial PTSD VA examination report, the Veteran discussed his occupational history, noting that starting in December 1997 he worked for Waste Management hauling garbage as temporary worker for a couple of months.  He reported that he then found work at a steakhouse for six months before transferring to another steakhouse for two months before was fired because of anger problems.  The Veteran indicated that his nephew then hired him to work at his granite company for three to four years before he had an accident resulting in his left leg being crushed.  He reported that he did not work from 2004 to 2009 until he completed the CWT Program at VA, becoming a Supply Technician at VA for 16 months.  He indicated that he was then offered full-time employment and has worked in that job for almost three years.  Regarding the Veteran’s present functioning, the examiner noted that the Veteran was presently working with reports of good performance and attendance record. 
In a May 2013 Informal Hearing Presentation, the Veteran’s representative argued that VA continues to lack the medical evidence necessary to determine the pending claim for TDIU.  While acknowledging that the Veteran had become employed as of December 2009, it was asserted that the October 2012 VA examiner’s opinion as to unemployability was inadequate, as no opinion was offered concerning employability at any time during the pendency of the claim. 
In August 2013, the Board remanded this matter for additional development, determining that a retrospective medical opinion addressing the effects of the Veteran’s service-connected PTSD on his ability to obtain and maintain substantially gainful employment consistent with his education and occupational experience for the period from July 17, 1997, to the present was necessary to effectively adjudicate the claim for entitlement to TDIU on appeal.  The examiner was instructed to compile a full work and educational history, provide the opinion without consideration of his nonservice-connected disabilities or age, and discuss whether the Veteran’s prior employment at his nephew’s granite company as well as his current VA CWT position constituted substantially gainful employment. 
In an October 2013 VA medical opinion,, a VA psychologist noted review of the VBMS paperless claims file and other electronic medical records as well as the Veteran’s educational and available work history.  Thereafter, the psychologist supplied the following opinion on the question of whether PTSD precluded the Veteran from securing and following substantially gainful employment consistent with education and occupational experience from July 17, 1997, to the present using five distinct time periods. 
1) In the period of 1997 and 1998, during which the Veteran worked at Outback
Steakhouse restaurants and Waste Management, the examiner found that he had marginal employment, but found that it could not be determined, without resorting to speculation, whether any limitations in his ability to secure and maintain gainful employment were due to PTSD or drug abuse.
In the cited rationale, the examiner commented that although over the years, the Veteran has provided a history of drug use ending in 1997, a contemporaneous report from Dr. H. dated in June 1999 indicated the Veteran had had no drugs for past three months.  The examiner found this information compelling, highlighting that clinical knowledge of drug use showed that relapses were common during early remission from drug use, and frequently not acknowledged in patient report.  The examiner further detailed that the record contained evidence of inconsistency in the Veteran’s report to providers in a May 2006 VA Mental Health intake note.  The examiner’s clinical judgment was that drug use was more likely than PTSD to cause employment problems, as the record showed that drug use occurred until March 1999, according to the Veteran’s psychiatrist.
(Parenthetically, the Board notes that a VA medical examination or opinion is not inadequate merely because the medical examiner states he or she cannot reach a conclusion without resort to speculation.  Jones v. Shinseki, 23 Vet. App. 382 (2010).  While VA has a duty to assist a veteran by providing a medical examination in certain situations, that duty does not extend to requiring a VA physician to render an opinion beyond what may reasonably be concluded from the procurable medical evidence.  In this instance, it is clear in the October 2013 VA examiner’s remarks that the actual cause of the Veteran’s limitations in his ability to secure and maintain gainful employment could not be selected from multiple potential causes, specifically PTSD and drug use.  Based on the foregoing, the Board finds the October 2013 VA medical opinion to be adequate for adjudicative purposes regarding the claim for entitlement to TDIU on appeal.) 
2) In the period of 1999 to March 2005, the examiner indicated that the Veteran worked at Great Lakes Stone.  It was noted that his employment included driving and managing a warehouse for 60 hours per week at $12.00 to $15.00 per hour. The examiner opined that the Veteran was working in substantially gainful employment with minimal limitations due to his PTSD during this time period.
In the cited rationale, the examiner reiterated that the Veteran’s work at Great Lakes Stone from 1999 to March 2005 was considered substantially gainful employment.  The examiner noted that the Veteran’s VA CWT assessment indicated that his employment at Great Lakes Stone was a productive position, requiring long hours and job skills, with the Veteran indicating that warehouse work was a primary work skill.  It was indicated that records of mental health functioning were limited by few contacts during this period, except for an admission for VA treatment at Battle Creek, with a Global Assessment of Functioning (GAF) score of 50 recorded in August 2002, which was judged by his providers as a drop in his previous functioning requiring acute intervention.  The examiner noted that the Veteran had been assigned a GAF score of 60 in June 1999.  It was further highlighted that a May 2000 psychiatry note characterized the Veteran as stable on medications, with no GAF score offered at that time.  The examiner reported that other evidence of record reflected that the Veteran received awards for volunteer work and activities in Narcotics Anonymous during this time period.  In the examiner’s opinion, the Veteran had mild to moderate symptoms at this time that overall were not enough to impact his productivity.
3) In the period from the Veteran’s workplace injury in March 2005 until his entry to a VA CWT program on October 2, 2008, the examiner opined that it was less than likely that any limitation to obtaining gainful employment was primarily due to the Veteran’s service-connected PTSD.
In the cited rationale, the examiner noted that history showed that the Veteran attributed leaving his job at Great Lakes Stone to a physical injury.  It was further noted that the record reflected the Veteran’s GAF score during this period ranged from 55 to 70, although mental health contacts were infrequent.  The examiner commented that the foregoing opinion was based on estimates of functioning and clinical judgment that mild to moderate mental health symptoms would not preclude employment during this time period.
For the period prior to October 2, 2008, the Board finds that the evidence of record is insufficient to show that the Veteran was unable to secure or follow a substantially gainful occupation because of his service-connected disabilities prior to October 2, 2008.  Notably, none of the VA examiners have opined that the Veteran is unemployable due to his service-connected PTSD.  As noted above, although the October 2013 VA examiner found that during the period from 1997 and 1998, the Veteran had marginal employment and opined that it could not be determined, without resorting to speculation, whether any limitations in his ability to secure and maintain gainful employment were due to PTSD or drug abuse.  However, the examiner’s clinical judgment was that drug use was more likely than PTSD to cause employment problems, as the record showed that drug use occurred until March 1999, according to the Veteran’s psychiatrist.  In this regard, the Board notes that service connection for the Veteran’s substance abuse disorders is not established.
For the period from 1999 to March 2005, the October 2013 VA examiner clearly opined that the Veteran was working in substantially gainful employment with minimal limitations due to his PTSD.  For the period from the Veteran’s workplace injury in March 2005 until his entry to the VA CWT program on October 2, 2008, the examiner further opined that it was less than likely that any limitation to obtaining gainful employment was primarily due to the Veteran’s service-connected PTSD. 
The October 2013 VA examiner based these unfavorable opinions for the remaining time periods on appeal on a detailed review of the Veteran’s entire claims file.  The examiner also compiled a comprehensive work history, discussed the medical evidence of record and the lay assertions of the Veteran, and provided a detailed rationale for his conclusions, considering only impairment from the Veteran’s service-connected disabilities and citing to numerous parts of the evidentiary record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). 
The Board acknowledges that the Veteran had occupational fluctuations, including being fired from employment at a steakhouse due to anger problems was fired because of anger problems, presumably a symptom of his PTSD.  However, this is contemplated by the 70 percent disability rating assigned for his service-connected PTSD.  It is very important for the Veteran to understand that his service-connected PTSD will cause him many problems, this is not in dispute.  Moreover, in spite of his psychiatric disorder, after being fired from his steakhouse job his nephew then hired him to work at his granite company where he maintained employment for several years.
While the Board does not disagree that his service-connected PTSD impacted his ability to work to some degree, the Board finds that the preponderance of the evidence is against a finding that the service-connected PTSD prevented him from securing or following a substantially gainful occupation.  Therefore, the Board finds that the Veteran does not meet the requirements for TDIU for the period prior to October 2, 2008.
In considering whether TDIU is warranted, the Board has also considered the Veteran’s statements that his service-connected disabilities made him unemployable.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify).  The Veteran is competent to report symptoms because that requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465 (1994).  However, he is not competent to identify to the extent to which service-connected disabilities make him unemployable according to the pertinent VA regulations.  Those determinations require training, which the Veteran is not shown to have.
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Overall, the evidence does not establish that the Veteran was unemployable due to his service-connected disabilities prior to October 2, 2008.
 
KELLI A. KORDICH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Adams, Counsel