Citation Nr: 18152647 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 14-37 787 DATE: November 27, 2018 ORDER Entitlement to service connection for low back disability is denied. Entitlement to service connection left knee disability is denied. Entitlement to service connection right knee disability is denied. Entitlement to a disability rating of 70 percent for the entire period on appeal for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability is granted. FINDINGS OF FACT 1. The Veteran’s low back disability did not originate in service or within a year of service, and is not otherwise etiologically related to the Veteran’s active service. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a left knee disability. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a right knee disability. 4. Resolving reasonable doubt in the Veteran’s favor, his PTSD has been manifested, at worst, by symptoms productive of occupational and social impairment with deficiencies in most areas. 5. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s service-connected disability is found to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for low back disability are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 2. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 3. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 4. The criteria for a rating of 70 percent, but no higher, for the entire period on appeal for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411 (2018). 5. The criteria for TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 4.16(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1997 to October 2001. This case comes to the Board of Veterans’ Appeals (Board) on appeal from May 2012, August 2013, and August 2014, and June 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office. In January 2014, the Veteran testified at a hearing before a Decision Review Officer (DRO hearing). A transcript of the DRO hearing is associated with the claims folder. In a September 2014 substantive appeal related to his low back disability claim, the Veteran requested a Board video conference hearing and in a February 2016 substantive appeal related to the remaining issues on appeal, the Veteran indicated he was undecided about the optional Board hearing and reserved the right to revisit the option at a later date. However, in a March 2018 correspondence, the Veteran, through his representative, withdrew his request for a Board hearing. Accordingly, the Board finds the Veteran’s hearing request is withdrawn. 38 C.F.R. § 20.704(e). Duties to Notify and Assist VA is granting the entitlement sought for the Veteran’s claim of entitlement to a TDIU. Therefore, any deficiency in VA’s duties to notify and assist the Veteran for this issue is harmless. For the remaining issues, VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in March 2013 and July 2013. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA’s notice or assistance duties. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Service Connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. The Board notes that it has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. The Board will summarize the relevant evidence, as deemed appropriate, and the Board’s analysis will focus on what the evidence shows, or fails to show, as to the claims. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Entitlement to service connection for low back disability A review of the service treatment records (STRs) shows that the Veteran was treated for an injury to his low back in May 1998. X-rays taken of the spine in May 1998 after the injury revealed negative findings related to the cervical spine, thoracic spine, and lumbosacral spine. Follow up appointments in June 1998 showed that the low back complaint resolved with a resolving contusion. An October 1998 physical examination noted the Veteran’s back and musculoskeletal system was normal. During the September 2001 separation report of medical examination, the Veteran’s spine was noted as normal on clinical evaluation. Although on the September 2001 report of medical history, the Veteran had indicated a history of lower back pain, the examiner had noted this was in reference to past low back pain, not pain at the separation examination. In a March 2012 VA examination, the examiner indicated the Veteran’s initial report of low back pain after separation for service was noted in July 2009. During examination, the Veteran reported that he originally started to notice chronic back issues in approximately 2000. He stated that he was stepped on by a bull in the spring of 1998 for which he was treated at Camp Pendleton. The Veteran also reported that in his lifetime, he has had various episodes where he pulled his back muscles. The Veteran indicated that he thought he broke his tailbone during his childhood and since then had landed on his buttocks wrong with reoccurrences of pain. The examiner noted the Veteran had mild degenerative disc disease of the lumbar spine with compression deformity at T1. The examiner found it was less likely as not caused by or a result of a specific exposure event experienced during service in Southwest Asia. The examiner explained that the Veteran had engaged in traumatic rodeo activities which were attributed to his current findings. The examiner noted the Veteran’s enlistment examination was negative for back pain or trouble and that although no medical opinion was specified as to a direct relation to service, there was only one set of x-rays done in 1998 of the thoracolumbar spine, which were negative, and there was no documentation on the Veteran regarding any back condition until 2009. In an April 2012 VA examination report, the examiner noted that during active service, a September 2001 STR revealed that the Veteran had reported past low back pain in reference to his 1998 accident in which he had been kicked in the low back by a horse and was sent to the ER via ambulance where he was diagnosed with multiple contusion and treated with Flexeril and Vicodin and placed in a C-collar. The examiner noted that in June 1998 STRs, the pain was noted as gone and diagnosis was noted as resolved. The examiner also noted that May 1998 x-ray of the back revealed normal lumbosacral spine. The examiner noted that after separation from active service from 2001 to 2009, there was no objective evidence of low back pain or treatment. After an examination, the examiner opined that the Veteran’s low back disability was less likely than not incurred in or caused by the in-service injury, event, or illness. The examiner explained that the Veteran was noted to have complete resolution of back pain in service with return to duty and that there was no objective evidence of diagnosis or treatment of a back condition from 2001 to 2009. The examiner also noted that there was evidence of a normal x-ray of the back, both in the thoracic and lumbar areas in 1998 at the time of the injury in service. The examiner acknowledged that at the time of the 2012 VA examination, there was evidence of likely traumatic injury with anterior wedging of the L1 vertebra but found that this likely happened after the injury in 1998 post service as it was not present at the time of the acute injury in service. As such, the examiner opined it is likely the current back condition is related to traumas post service and not to the trauma in service due to changes in x-ray findings consistent with trauma. Initially, the Board finds that it cannot be concluded that a chronic low back disability was shown in service. While the Veteran was treated for a low back disability, STRs in June 1998 specifically noted the low back pain had resolved and there were no further complaints noted afterwards. In addition, x-rays taken of the Veteran’s spine immediately after the in-service injury in May 1998 revealed negative findings and the Veteran’s examination in October 1999 and during separation examination in September 2001 found no clinical abnormalities of the spine. The Board acknowledges that the Veteran indicated recurrent back pain at the time of the separation examination in September 2001, however, the examiner during separation specifically indicated this was in reference to past low back pain, not current symptoms at the time of separation. Moreover, arthritis was not shown in service, nor is it shown to have manifested within the one year following separation from service, so as to support granting service connection on the basis of presumptive service connection. 38 C.F.R. §§ 3.307, 3.309(a). The Board notes that the medical evidence of record shows the Veteran’s first complaints pertaining to the low back following service were in 2009, more than 8 years after separation from service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran also admitted during his January 2014 DRO hearing that he did not seek treatment for his back until 2009. Moreover, the Board notes that the only adequate medical opinion to address the probability of a medical relationship between the Veteran’s low back disability and service weighs against the claim. The Board finds that the April 2012 VA examiner’s opinion constitutes competent, probative, and persuasive evidence that is based on review of the Veteran’s documented medical history and assertions and examination. The examiner provided a rationale based on an accurate discussion of the evidence of record. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Significantly, the Veteran has not presented or identified any contrary adequate medical opinion that supports the claim for service connection. The Board finds that the most persuasive evidence of record shows that the Veteran’s current low back disability had its onset years after service, and are not related to service or any incident during service. The only other evidence of record supporting the Veteran’s claim is his own lay statements and his wife’s statement of ongoing back pain. See January 2014 DRO hearing. Even if those statements could be read as claiming continuity of symptomatology since service, that history is substantially rebutted by the complete absence of complaints pertaining to the low back until 2009, the normal x-rays of the spine immediately after the Veteran’s sole in-service back injury, and the clinical evaluation at separation noting no abnormalities of the spine. While the Veteran and his wife is competent to report his symptoms of a low back disorder, neither he nor his wife are competent to relate a current low back disorder to active service as that requires medical testing and expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran and his spouse’s lay assertions do not provide probative evidence that it is at least as likely as not that his current low back disability is related to service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a low back disability, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection right and left knee disabilities The Veteran claims entitlement to service connection for right and left knee disabilities. After review of the evidentiary record, the Board finds that service connection is not warranted for right and left knee disabilities. In this regard, the Board notes that the service treatment records (STRs) do reflect knee complaints. Specifically, STRs in October 1997 noted the Veteran complaints of right knee pain and the Veteran had indicated it was likely due to a sweep kick to his patella during training. Initial evaluation of the knees noted tenderness to palpation to the left knee patella and significant tenderness to palpation to the right knee. The provider noted an assessment of right knee contusion. The provider had also noted the Veteran’s prior injury with direct trauma and dragging injury from bull riding in which the Veteran could not walk for two months four years ago. A follow up appointment in October 1997 noted the Veteran’s increased right knee pain despite using crutches for the last three days. In a November 1997 follow up appointment, the provider noted the Veteran’s right knee was feeling a lot better and that medication helped and crutches minimized activities. On examination, the right knee was noted as non- tender and normal and that both knees had full range of motion. The provider noted an assessment of resolving knee pain. In a subsequent STR in November 1997, the Veteran complained of right knee pain. The Veteran indicated he had reinjured his right knee after taking the truck out. The Veteran reported that the pain was not constant but was sharp when moving. The medical provider noted an assessment of patellofemoral pain syndrome and Grade I lateral collateral ligament sprain. December 1997 STRs show the Veteran reported on and off pain in the right knee with an assessment of ilio tibial band tendonitis of the right knee, resolving. An October 1998 STR noted the Veteran’s reports of left knee pain for two weeks. The Veteran reported that his left knee had been sore for the past two weeks but during a run on the day of evaluation, his left knee started to pop and hurt more. He reported that he has had previous injuries to his left knee but denied any trauma to the knee in the past two weeks and indicated it had just started to get sore. The provider noted assessments of left knee sprain with negative varus and negative valgus. The Veteran had indicated a history of “trick” or locked knee on his September 2001 separation report of medical history. However, during the September 2001 separation report of medical examination, the Veteran’s lower extremities were noted as normal on clinical evaluation and the medical provider noted there were no issues related to the knee pain. In a March 2012 VA examination report, the examiner noted the Veteran’s initial reports of knee pain in 2009. The examiner noted March 2012 x-ray reports for the knees revealed no left knee fracture, dislocation, or significant degenerative changes were identified. The examiner indicated there were no left knee joint effusion identified. The examiner noted there were only tiny dorsal patellar osteophytes. In an April 2013 VA examination, the examiner noted the Veteran’s reports of and treatment for his in-service knee pain. The Veteran denied seeking private medical treatment for his knees since discharge from the military. During examination, the Veteran reported that both of his knees hurt during periods of cold weather or prolonged standing of over 1.5 hours, with right knee pain greater than the left knee pain. The Veteran denied knee effusion or the need to have either knee aspirated. The Veteran reported pain in both knees on the lateral upper side of the patella and he denied a history of knee surgeries. The examiner noted an April 2013 x-ray report of the right knee revealed slight retropatellar spurring with no acute fracture or destructive lesion seen. The examiner noted mineralization was normal in the right knee. The examiner also reiterated the March 2012 x-ray reports of the left knee that revealed tiny dorsal patellar osteophytes in the left knee but there were no left knee effusion, fracture, dislocation or significant degenerative changes identified. After examination, the examiner noted that the Veteran’s in service left knee injuries and reports of pain were resolved by the time of his military discharge. The examiner noted that the Veteran’s separation examination findings for extremities was noted as normal and that an August 2001 SF Form 88, the Veteran had denied arthritis or joint pain. The examiner also found that for the Veteran’s currently claimed bilateral knee condition, there was no objective examination or x-ray findings consistent with a current diagnosis and as such, there was no current diagnosis for the claimed condition. The examiner acknowledged the Veteran’s minimal retropatellar spurring on x-ray reports but indicate this was an age appropriate pathology and expected with a person being obese as the Veteran was. The examiner noted that the previously diagnosed knee tendonitis and knee sprain would not have been a nexus for or aggravated his current non-significant findings of “minimal retropatellar spurring.” The examiner also noted the Veteran’s claimed right and left knee disabilities did not have a functional impact and did not impact his ability to work. The Board acknowledges the Veteran’s contentions. However, the threshold requirement here (as in any claim seeking service connection) is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., right and left knee disabilities. See 38 U.S.C. § 1110. The record does not include any such evidence. Notably, the treatment records associated with the record do not show any diagnosis for right and left knee disabilities except to note the Veteran’s report of right and left knee pain from 2009. Most probative, the 2013 VA examiner, who conducted a thorough review of the claims file as well as radiological testing, found that the Veteran’s current claimed right and left knee conditions failed to meet current diagnostic criteria and as such have no current diagnoses. Accordingly, there is no valid claim of service connection for right and left knee disabilities. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board also notes the Court of Appeals for the Federal Circuit recently found that pain alone can constitute a “disability” under 38 U.S.C. § 1110, because pain can cause functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, even in light of Saunders, the Board finds that the Veteran still does not have a present disability for his claimed right and left knee disabilities as the examiner noted there is no functional impact. In so finding, the Board notes that the Veteran is considered competent to describe his symptoms, but he is not competent to render a current diagnosis of knee disabilities, which requires specialized medical testing and knowledge of the musculoskeletal system. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The evidence simply does not show that the Veteran has a right or left knee disability. Absent a current diagnosis, service connection is not warranted. The Board also notes, that even so finding that the x-ray findings of the knees met the current diagnostic criteria to warrant a finding of a current diagnosis, that the only adequate medical opinion to address the probability of a medical relationship between the Veteran’s right and left knee disabilities and service weighs against the claims. The examiner specifically explained that the previously diagnosed knee tendonitis and knee sprain during active service would not have been a nexus for or aggravated his current non-significant x-ray findings in the left and right knees. The Board finds that the April 2013 VA examiner’s opinion constitutes competent, probative, and persuasive evidence that is based on review of the Veteran’s documented medical history and assertions and examination. The examiner provided a rationale based on an accurate discussion of the evidence of record. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Significantly, the Veteran has not presented or identified any contrary adequate medical opinion that supports the claims for service connection for the left and right knee. The Board finds that the most persuasive evidence of record shows that the Veteran’s claimed right and left knee disabilities are not related to service or any incident during service. Consequently, the preponderance of the evidence is against the claims for service connection for the claimed right knee and left knee disabilities. Accordingly, the claims must be denied. In denying these claims, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s left and right knee claims, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Increased Rating Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD) Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating 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 there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The Court has held that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” rating. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (the Court noted a distinction between claims stemming from an original rating versus increased rating); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings). The basis of disability evaluation 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. The Veteran’s PTSD is evaluated as 50 percent disabling from June 20, 2011 under Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted 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, Diagnostic Code 9411. 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if there is 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 determining the appropriate disability evaluation under the general rating formula, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F. 3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be due to those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d 112. The classification outlined in the portion of VA’s Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130. VA implemented DSM-5, effective August 4, 2014. The Secretary of VA, however, has determined that DSM-5 does not apply to claims certified to the Board prior to August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The AOJ certified the Veteran’s appeal for his PTSD increased rating claim to the Board in January 2018. Here, the Veteran’s PTSD increased rating claim was received by VA on May 8, 2013. A May 2013 VA treatment record noted the Veteran’s reports of increased sadness and irritability with progressively worsening mood with mood swings, increased nightmares, and intrusive memories. The Veteran also report having problems with falling asleep. The provider noted the Veteran had good grooming and hygiene, was pleasant and cooperative, had good eye contact, had no psychomotor abnormalities with no abnormal movements, and had normal tone, rhythm, rate, and volume in his speech. The Veteran was subsequently provided a VA examination in August 2013. During examination, the examiner noted the Veteran’s non-compliance with therapy and medication and had multiple bench warrants. The examiner noted that during his last appointment with VA in May 2013, the medical provider noted the Veteran’s increased irritability, mood swings, nightmares, and intrusive ideation. The examiner also noted the Veteran had multiple ongoing legal issues in which the Veteran sought to regain custody of his two sons. The Veteran was noted to currently have no custody rights to either of his sons and the sons’ mother’s family was suing him for perjury. During the examination, the examiner noted the Veteran experienced recurrent and distressing recollections of the traumatic event, including images, thoughts, or perceptions and recurrent distressing dreams. The examiner noted the Veteran made efforts to avoid of thoughts, feelings, and conversations associated with the trauma, made efforts to avoid activities, places, or people that aroused recollections of the trauma, and felt detachment or estrangement from others. The examiner also noted the Veteran’s PTSD increased arousal symptoms of difficulty falling or staying asleep and irritability or outbursts of anger. The examiner noted the Veteran’s additional PTSD symptoms of depressed mood, anxiety, and chronic sleep impairment. The examiner noted the Veteran’s PTSD symptoms caused clinically significant distress or impairment in social, occupation, or other important areas of functioning. At the August 2013 VA examination, the Veteran was noted as casually and appropriately dressed, was clear and articulate throughout the interview, displayed good insight into his symptoms and the functional impairment attributed to them, did not appear to have any difficulty with either his recent or remote history, denied current suicidal or homicidal ideation or hallucinations, had linear and logical thought processes, was cooperative, and had sufficient judgement. The examiner noted the Veteran’s mood and affect were congruent and appropriate to thought content and there was no observable thought disorder. The examiner noted his mood varied throughout the interview. The Veteran reported that he shopped at Wal-Mart at night to avoid other and the examiner noted it was beyond a doubt that his PTSD caused impairment and distress. The examiner also agreed with the Veteran’s contention that in many work areas, he would be very uncomfortable. However, the examiner noted the Veteran was self-employed at the time of examination. The Veteran’s wife, S.F., submitted a statement in support of the Veteran’s PTSD increased rating claim in August 2013. She reported the Veteran’s PTSD was much worse than described by the VA examiner because the Veteran tried to hide a lot of his triggers as he saw them as a weakness. S.F. described the Veteran’s avoidance of the trauma he experienced during service. She reported his nightmares, sleepwalking, night sweats, ongoing sleep impairment, fights in his sleep, and sleep talking. She reported the Veteran had very few friends. She reported the Veteran’s fear of rain, thunder, and lightning and indicated he would attempt to find cover from perceived mortars during thunder as he had flashbacks to mortar strikes. She indicated that they tried to avoid going to public places when it rained. S.F. also reported the Veteran experienced anxiety attacks when he was out trying to shop, or when he was sitting in a desk in which he could not see behind him or the door. She also reported one instance in which the Veteran ran away from a woman who wore burkas as it triggered a traumatic memory. She noted the Veteran’s account of an in-service traumatic experience in which the Veteran had witnessed a female with a bomb who was with her two children that had self-detonated in front of him. He had failed to save the two children. S.F. also indicated the Veteran had not held a job since 2010 and even then, it was sporadic employment. She reported the Veteran experienced severe panic attacks during interviews for employment and that the Veteran’s normal hours were from 8pm to 6am and that as a result, he would have difficulty holding a job from 9am to 5pm. She also referenced his learning disability and his impaired impulse control. She reported that the Veteran had increased inappropriate outbursts for unknown reasons and experienced social avoidance. She also reported the Veteran experienced depression and have had episodes in which he cried uncontrollably. VA treatment records in 2014 noted the Veteran was alert and oriented. A February 2015 VA treatment record noted the Veteran was noncompliant with psychiatric care. The Veteran reported he was getting into rages and that he would “just go off, scream bloody murder, and break things.” He stated these rages were triggered by “dumb” things, misunderstandings, and not getting his way. He reported he had been having these episodes for the last couple of years. The Veteran reported flashbacks every other day, ongoing sleep impairment, nightmares, and intrusive thoughts. He reported symptoms of avoidance, hypervigilance, and startle response. Specifically, he reported he had not watched television for three years, avoided the news, and avoided crowds. He stated that sometimes thunder put him on the floor and that he avoided fireworks. The Veteran reported that although he was married and had everything he could ever want, he was unhappy. He attributed his unhappiness to not having access to his children. He stated that his spouse had kept him from acting out violently against those who took his children. The Veteran reported that he experienced chronic thoughts regarding suicidal and homicidal ideation but had no plan or intent. On mental status examination, the provider noted the Veteran was well groomed, had good hygiene, and was appropriately dressed. He had normal kinetics, no unusual mannerisms, no abnormal movements, and had normal rate, rhythm, tone, volume, and articulation of speech. His thought processes and thought content were noted as normal. The Veteran was noted as oriented to person, place, and situation. His attention, concentration, insight, and judgement were noted as good. In a December 2015 VA examination report, the examiner noted the Veteran was homeless, remained married, last worked in 2009 as a union pipefitter apprentice but was suspended for accident on the job, and had learning difficulties and disabilities. The examiner noted that at the time of the 2013 VA examination, the Veteran was planning on developing and selling small ranches but plans fell though and the Veteran had not had any employment since then. The examiner noted the Veteran’s complaints of rages and depersonalization as his most outstanding problems. The Veteran reported that he used to have suicidal ideation. The examiner noted the Veteran demonstrated expansive affect and pressured speech. The Veteran admitted to racing thoughts when he was sober and that he did not know much sleep he needed. The Veteran reported use of illicit drugs. The examiner noted the Veteran was not necessarily easily distracted, not agitated, and not complaining of increased goal directed behavior, grandiosity, or inflated self-esteem. The examiner noted the Veteran’s homicidal ideation. The examiner noted Veteran’s legal history included legal problems related to fighting, hurting other people, receiving felonies, and going to prison. The examiner noted the Veteran had been delinquent with child support payments. The examiner also noted that the last time he was in a heated argument with another person was six hours ago and that the last time he was in a physical altercation with another person was one-to-two years ago. The examiner noted the Veteran had poor quality of sleep generally, poor without drugs and even poorer with drugs, averaging between three to five hours of sleep per day. The examiner indicated the Veteran’s reports that that people had obtained restraining orders against the Veteran when he talked and yelled. The Veteran stated that he was having live shootouts with his landlords while on Apache Land and that he decided that he was not going to stay there indefinitely as they had started shooting him on a nightly basis. The Veteran stated that neither he nor his wife were good at handling money and that his mother-in-law had been managing their finances as she was also currently helping them out financially. The Veteran admitted that he was a functioning drunk and had been using methamphetamine since his 2013 VA examination. During the December 2015 VA examination, the examiner noted the Veteran experienced recurrent and distressing recollections of the traumatic event, including images, thoughts, or perceptions and recurrent distressing dreams. The examiner noted the Veteran’s avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that aroused distressing memories, thoughts, or feeling about or closely associated with the traumatic events. The examiner also noted the Veteran’s persistent and exaggerated negative beliefs or expectations about oneself, others, and the world. The Veteran was noted to be in a persistent negative emotional state. The examiner also noted the Veteran’s PTSD increased arousal symptoms of irritability or outbursts of anger with little or no provocation typically expressed as verbal or physical aggression toward people or object, problems with concentration, and sleep disturbance. The examiner noted the Veteran’s additional PTSD symptoms of depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, impairment of short-and long-term memory, difficulty in understanding complex commands, impaired judgment, gross impairment in thought processes or communication, and difficulty in establishing and maintaining effective work and social relationships. At the December 2015 examination, the examiner noted the Veteran’s attire was casual, grooming was clean and neat, and that he appeared lively. The examiner noted that eye contact was present but speech was pressured and affect was expansive. The examiner noted the Veteran’s thought processes were rapid and thought content was with vague homicidal ideation, but without suicidal ideation. The examiner noted the Veteran did not appear to be responding to internal stimuli, his insight was limited, and his judgement was impaired. The examiner noted the Veteran’s psychomotor activity was neutral, that muscular observation showed absence of focal motor deficits, cognitions were grossly intact, and abstractions were deferred. The examiner also elaborated that the Veteran had provoked anger, irritability, and violence and that although the Veteran denied these being unprovoked, he stated that the littlest or smallest things may set these things in motion. The examiner noted the Veteran was not capable of managing his financial affairs. The examiner noted the Veteran’s PTSD symptoms affected the Veteran’s ability to pay attention, concentrate, reason, work without being impaired by substance abuse, work without being incapacitated by emotional and mental symptoms, and work without being distracted by symptoms provoked by interpersonal interactions with others. The examiner diagnosed PTSD, amphetamine dependence, and alcohol dependence and found that it was not possible to differentiate what symptoms were attributable to each diagnosis. The examiner opined that a relationship between the Veteran’s PTSD and his amphetamine dependence as well as his alcohol dependence could not be determined without resorting to mere speculation. In a March 2017 VA examination, the examiner diagnosed PTSD, stimulant use disorder, amphetamine type substance, severe and found that it was not possible to differentiate what portion of each symptom was attributable to each diagnosis nor was it possible to differentiate what portion of indicated level of occupational and social impairment was attributable to each diagnosis, as symptoms of PTSD and methamphetamine intoxication often appear similar. The examiner noted that specifically, irritable behavior and angry outbursts with little or no provocation, reckless or self-destructive behavior, hypervigilance, exaggerated startle response, problems with concentration, sleep disturbance, anxiety, depression, and psychosis, can all be observed in individuals suffering from PTSD as well as when under the influence of methamphetamine. The Veteran reported that although he was separated from his wife, she was still his closest social support. He reported that he had no close friends and indicated this was not typical for him throughout his life. He reported that in his free time, he raised chickens and did not participate in organized social groups. He reported a history of academic difficulties and that he last worked with his dad in 2008 or 2009. He indicated he had been run off from a lot of jobs. The Veteran reported that he first received psychological treatment in 2010 and been in treatment intermittently since that time. He reported that he was not taking any medication and was not receiving psychological treatment. The Veteran endorsed a history of alcohol abuse and use of illicit substances. He stated he last drank in 2012 and last used methamphetamine two weeks prior. During the March 2017 VA examination, the examiner noted the Veteran experienced the following: recurrent, involuntary, and intrusive distressing memories of the traumatic events, recurrent distressing dreams in which the content and/or affect of the dream were related to the traumatic events, dissociative reactions in which the individual felt or acted as if the traumatic events were recurring, intense or prolonged psychological distress at exposure to external or external cues that symbolize or resemble an aspect of the traumatic events, and marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic events. The examiner noted the Veteran’s avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic events as well as avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that aroused distressing memories, thoughts, or feeling about or closely associated with the traumatic events. The examiner noted the Veteran’s inability to remember an important aspect of the traumatic events, persistent and exaggerated negative beliefs or expectations about oneself, others, and the world, persistent, distorted cognitions about the cause or consequences of the traumatic events that lead to the individual to blame himself or others, persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, and persistent inability to experience positive emotions. The examiner also noted the Veteran’s PTSD increased arousal symptoms of irritability or outbursts of anger with little or no provocation typically expressed as verbal or physical aggression toward people or object, reckless or self-destructive behavior, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance. The examiner noted the Veteran’s additional PTSD symptoms of depressed mood and anxiety. At the March 2017 VA examination, the examiner noted the Veteran had arrived on time for his appointment and was casually and neatly dressed and groomed. The examiner indicated the Veteran drove himself to the appointment. The examiner noted the Veteran’s speech was of normal tone, volume and speed. The examiner noted the Veteran’s receptive and expressive language appeared to be intact and that he was alert and oriented in all spheres. The examiner noted he was able to maintain attention and concentration during the interview with good and intermittent eye contact. The Veteran’s motor behavior was noted as within normal limits and the Veteran did not display unusual mannerisms. The examiner noted the Veteran’s mood was euthymic and his affect was congruent, his thought processes were logical and goal oriented, he did not display any signs of paranoia or delusions, and his memory was grossly intact. The Veteran denied any audial or visual hallucinations, did not appear to be responding to internal stimuli, and did not endorse symptoms consistent with mania, hypomania, OCD, self-injurious behaviors, eating disorders, or psychosis. The examiner noted there was no evidence of disorganized speech or bizarre behaviors and there was no evidence of elevated mood, decreased need for sleep, expansiveness, intensification of goal-directed activity, grandiosity, flight of ideas, or risky hedonistic pursuits. The Veteran denied current suicidal ideation, plan, or intent. The examiner noted additional symptoms attributable to PTSD to include sleep disturbance, nightmares, anger problems and impaired self-control with raging fits, problems with concentration, anxiety, depression, and intermittent suicidal ideation. The Veteran denied any symptoms of psychosis outside of using amphetamine. The examiner noted the Veteran did not appear to pose any threat of danger or injury to self or others. For the entirety of the relevant period on appeal, many of the Veteran’s abilities and behaviors do not approximate particulars for a disability rating in excess of 50 percent. For example, there was no indication that his orientation, alertness, speech, and linear thought process was mostly abnormal on examination nor was there indication of the lack of maintaining minimal personal appearance or hygiene. This weighs against finding that the Veteran’s psychiatric symptoms result in deficiencies in most areas. However, the Veteran’s complaints regarding his intermittent suicidal and homicidal ideation, his ongoing sleep impairment, his anger outbursts and increased irritability, his hypervigilance and exaggerated startle response, and his ongoing anxiety and depression supports entitlement to a 70 percent rating for PTSD. The mandate to accord the Veteran the benefit of the doubt is triggered when the evidence is in equipoise, as is the case here. Because a state of relative equipoise has been reached as to the issue of an increased rating for PTSD, the benefit of the doubt rule applies and a 70 percent rating is granted. See Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993). For the entirety of the appeal, the Veteran is not entitled to a disability rating in excess of 70 percent. The medical and lay evidence does not indicate that the Veteran is a persistent harm to himself or others, had grossly inappropriate behavior, or was disoriented to time or place. There is no evidence of memory difficulties. The Board also notes the Veteran maintains a relationship with his wife, who he identifies as his “closest social support”. The Veteran’s ability to care for himself while tending to care of chickens also heavily against a 100 percent rating that is applicable only when there is total occupational and social impairment. The Board acknowledges the Veteran’s reports of hallucinations but notes the Veteran denied any symptoms of psychosis outside of the using amphetamine. The Board also acknowledges the Veteran’s reports of homicidal ideations. However, the Board notes that the Veteran had consistently denied homicidal intent or plan. Considering the evidence clearly does not show the Veteran has total occupational and social impairment due to his PTSD, the Veteran’s PTSD does not warrant a higher rating of 100 percent. As noted above, the benefit-of-the-doubt rule applies and entitlement to a 70 percent disability rating (but no more) for PTSD for the entire period on appeal is granted. See 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. The term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Employment may be marginal even when the Veteran’s earned income exceeds the poverty threshold if the Veteran is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). The determination as to whether a TDIU is appropriate is not based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). Any consideration as to whether the Veteran is unemployable is a subjective one that is based upon the Veteran’s actual level of industrial impairment, not merely the level of industrial impairment experienced by the average person. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Advancing age and nonservice-connected disability may not be considered in the determination of whether a Veteran is entitled to a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment. Instead, the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one, but is rather a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If, as in this case, there are two or more service-connected disabilities, one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). As noted above, the Veteran has been granted a 70 percent rating for his PTSD for the entirety of the current appeal period, and thus, the Veteran met the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). For the current period on appeal, he was also in receipt of a 10 percent rating for right foot disability. The Veteran contends that he is unable to obtain and secure substantially gainful employment as a result of his service-connected PTSD. He reported the last time he was employed was sometime in 2009. As noted above, VA examinations of record have consistently noted that it was not possible to differentiate what symptoms were attributable to each diagnosis as to PTSD, amphetamine dependence, and alcohol dependence. VA examiners have noted the Veteran’s significant social and functional impairment due to such symptoms, to include ongoing anxiety and depression, irritability and outbursts of anger with little or no provocation typically expressed as verbal and physical aggression toward people or object, reckless and self-destructive behavior, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance. The Board acknowledges the March 2017 VA examiner’s finding that it appeared that the Veteran’s ongoing use of methamphetamine was the primary limitation to maintaining employment at the time. However, the Board reiterates the March 2017 VA examiner’s finding that it was not possible to differentiate what portion of the indicated level of occupational and social impairment was attributable to each diagnosis as symptoms of PTSD and methamphetamine intoxication are often similar. As such, the Board notes that such findings of the March 2017 VA examiner ultimately support the Board’s conclusion that the Veteran’s PTSD symptoms would preclude the Veteran from securing and/or maintaining substantially gainful occupation. The Board has considered the Veteran’s functional capacity and work experience in determining that no type of employment would appear to be appropriate for the Veteran. See 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board also notes that the Veteran appears able to perform certain aspects of daily living. However, the law recognizes that a person may be too disabled to engage in employment although he or she is fairly comfortable at home or upon limited activity. See 38 C.F.R. § 4.10. In addition, a Veteran does not have to prove that he is 100 percent unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award. See 38 C.F.R. § 3.340 (a); Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Based on the most probative evidence of record, and resolving all benefit of the doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected PTSD renders him unable to secure or follow a substantially gainful occupation, and a TDIU is warranted for the entire period on appeal. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lindsey M. Connor Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel