Citation Nr: 18154914 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 10-26 880 DATE: December 4, 2018 ORDER Entitlement to an initial disability rating in excess of 50 percent for post-traumatic stress disorder (PTSD) for the period prior to December 31, 2010 is denied. Entitlement to an initial disability rating of 70 percent for PTSD for the period from December 31, 2010 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. For the period prior to December 31, 2010, the Veteran’s PTSD has been characterized by occupational and social impairment with reduced reliability and productivity. 2. For the period from December 31, 2010, the Veteran’s PTSD has been characterized by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking and mood. 3. The Veteran’s service-connected disabilities did not prevent the Veteran from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. For the period prior to December 31, 2010, the criteria for entitlement to an initial disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. For the period from December 31, 2010, the criteria for entitlement to an initial disability rating of 70 percent have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, DC 9411. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come to the Board of Veterans’ Appeals (Board) with a lengthy history. The Veteran’s original claim for service connection for PTSD was received by VA on September 5, 2006, and it was denied in rating decisions dated January 2007 and September 2007. The Veteran submitted a written statement to VA in February 2008 disagreeing with these decisions, which the regional office (RO) incorrectly interpreted as a new claim for service connection. In the August 2008 rating decision that followed, the Veteran was granted service connection for adjustment disorder with depressed mood and assigned a disability rating of 30 percent effective February 2, 2008, the date the Veteran’s written statement was received at VA. The Veteran filed a Notice of Disagreement (NOD) challenging his disability rating in May 2009, and his 30 percent rating was continued in an August 2009 rating decision. He filed an additional NOD in September 2009 that was followed by a letter from his representative arguing that the Veteran’s diagnosis was mischaracterized as adjustment disorder while it should have been characterized as PTSD. In the June 2010 Statement of the Case that followed, the RO re-characterized the Veteran’s service-connected condition as PTSD and continued his 30 percent rating for such, effective February 2, 2008. Thereafter, the Veteran appealed this issue to the Board. In the meantime, the Veteran underwent a VA examination and, in the September 2012 rating decision that followed, he was granted a 50 percent rating for his PTSD, effective May 23, 2012. He filed an NOD, taking issue with his disability ratings and, also, arguing that his service connection claim should have been granted as of the date of his original claim in September 2006. At that time, he also raised the issue of entitlement to a TDIU. In an October 2013 rating decision thereafter, the RO found that a clear and unmistakable error was made in the evaluation of the Veteran’s PTSD, and it concluded that the Veteran’s 30 percent disability rating is warranted from September 5, 2006, the date of the Veteran’s original claim. It also denied entitlement to a TDIU. Finally, the Veteran’s claims came before the Board and, in a July 2014 decision, the Board granted a disability rating of 50 percent for the period from September 5, 2006 to May 23, 2012. It remanded the claim for a disability rating in excess of 50 percent for the period from May 23, 2012, and for entitlement to a TDIU. When these matters returned to the Board in July 2017, they were remanded once again so that the RO could acquire and consider outstanding treatment records. These matters now return to the Board. 1. Entitlement to an initial disability rating in excess of 50 percent for PTSD Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers current examination reports in light of the entire record to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Where, as here, the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, in a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App, 119 (1999). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event. It may find that the preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran’s PTSD is rated at 50 percent disabling pursuant to 38 C.F.R. § 4.130 DC 9411 which states that PTSD should be rated under the General Rating Formula for evaluating psychiatric disabilities other than eating disorders. Under the general formula, a 50 percent rating 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals 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 is assigned for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) the Federal Circuit stated that “a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that 38 C.F.R. § 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” After a thorough review of the claims file, the Board finds that a disability rating in excess of 50 percent is not warranted for the period prior to December 31, 2010; however, a 70 percent rating is warranted for the period thereafter. At his May 2008 VA examination, the examiner canvassed the Veteran’s experience in combat in Vietnam and diagnosed the Veteran with adjustment disorder with chronic depressed mood. The examiner noted that the Veteran found it difficult to get along with people and to allow others to get close to him. Although the Veteran raised a family with his now ex-wife, he never felt close to anyone in his family because of an inability to trust. The Veteran disclosed that he never actually wanted children, and although he wished to establish a connection with them, he has not been able to do so. The Veteran reported that he is often angry and irritable and that he is unable to get along with others. He keeps himself isolated from others most of the time. He sleeps only four or five hours per night, and he suffers from occasional nightmares from which he wakes up feeling anxious. Furthermore, he experiences intrusive thoughts several times per week that make him feel depressed. He thinks often about how badly he and other servicemen were treated when he returned from Vietnam. The Veteran reported having a fair amount of energy, some difficulty with attention and concentration, and that he had recently become forgetful. He experiences crying spells, but these are related to the death of his twin brother who died three years prior. He also experiences verbal outbursts, although he never becomes physically aggressive and he never actually hurts anyone. The Veteran tends to avoid watching war movies or the news because they reminded him of his traumatic military experiences. As for work, the Veteran continued to work as a sales executive at the same television station at which he had worked for the past twenty-five years. He reported that, at work, he “stays pretty much all day in his office and focusses on his assignments.” Although his colleagues are social, he does not spend time with them because he fears that he will become irritable from some “little thing” that might “set him off.” He said that he does not get along well with some colleagues, so he tries to stay by himself. He reported becoming anxious at work when he is overwhelmed by assignments. The Veteran denied losing any time from work due to his psychological problems. Socially, the Veteran reported that, after he divorced his wife, he never remarried, although he is currently in an “on and off relationship” with a long-term girlfriend. He reported that he plays tennis on a couple of teams and he enjoys travelling. He usually can go outside of the house without any difficulty, and he often goes out to dinner with his girlfriend without any problem. A June 2009 written statement from a friend of the Veteran confirmed that the Veteran experiences discomfort in social situations. He is unable to spend time in large crowds. He becomes nervous and looks constantly for a place to retreat or a reason to leave. For this reason, he does not enjoy social events. In addition, he is often on the defensive in conservations. He becomes agitated or exceptionally angry if someone offends him or his belief system. Moreover, he has difficulty maintaining significant relationships. For example, he is unable to make a commitment to his girlfriend who he had been dating for nine years. In addition, his children think he is crazy, and he becomes very angry with his youngest son because of his high expectations for him. In an additional June 2009 written statement, the Veteran’s former wife explained that the Veteran’s PTSD worsened over the past year, as he has become more irritable. She confirmed that he does not like being in large crowds, he has trust issues, and that he rarely sleeps at night. Her children do not want to be around him because of his short temper and their fear that he might explode on them. At the Veteran’s June 2009 VA examination, the examiner noted that the Veteran relives his combat-related experiences through nightmares and flashbacks and that he feels chronically sad and depressed. He has difficulty getting along with others, a low tolerance for frustration, and he experiences anger outbursts. He sleeps only three to four hours per night and he has three to four nightmares per week, after which he wakes up in cold sweat with uncontrollable shaking and palpitations. His flashbacks occur regularly, and sometimes they result in crying spells. He experiences recurring intrusive thoughts three to four times per month. The Veteran reported that he does not do well with loud noises, as he becomes nervous and jumpy. When he is outside, he is always cautious, and he looks around for threats. For this reason, he also does not “do well” around people. He does not trust anyone outside of his close friends. He feels hopelessness and guilt about his inability to get close to people, especially his children. The Veteran reported passive suicidal thoughts after his return from Vietnam, but denied any active attempts to harm himself. He denied any recent history of active suicidal or homicidal ideation. The examiner explained that the Veteran’s current psychiatric condition affected his industrial functioning in that the Veteran actively tries to stay away from other people at work, and he spends time mostly by himself. However, the Veteran denied any significant social problems in his work setting. The Veteran did not report any work-related problems, or any actual interpersonal conflict. The examiner concluded that the Veteran did not manifest any current major functional limitation that would limit his ability to maintain meaningful employment. Furthermore, the examiner noted that the Veteran’s social life is “significantly compromised” due to his condition. He is divorced and lives alone. He is fairly isolated, and he is unable to be in close relationships. He is estranged from his family and has difficulty establishing trust in relationships. Because of this, he is unable to have a meaningful social life and he prefers to stay by himself. He does, however, live in a house that he owns, and he does his own cooking and cleaning. Two years later, in a June 2011 written statement, the Veteran explained that he still cannot sleep more than four hours at night, he experiences frequent flashbacks and nightmares about Vietnam, and he continues to isolate himself from people and the public. Relationship problems, he said, were worse than ever. In February 2012, the Veteran underwent an additional VA examination, at which the examiner diagnosed him with anxiety disorder and alcohol dependence and found that he experienced occupational and social impairments due to mild or transient symptoms. The examiner noted that the Veteran experienced anxiety, depressed mood, suspiciousness, chronic sleep impairment and mild memory loss. The examiner explained that the Veteran experiences difficulty establishing and maintaining effective work and social relationships. The Veteran never sees his children or grandchildren, even though two of them live closed by; and he has no current close relationships due to his attitude and irritability. The Veteran complained of feeling depressed “because I don’t have the relationship I need to have with my kids and grandkids.” He is not very trusting and he can be very cynical about people. He also does not have a lot of trust in his surroundings. He is very cautious and he constantly looks around to make sure he is safe. As for work, the Veteran reported that he quit his job of twenty-seven years as of December 31, 2010, because he was “tired of it.” Although he got along “ok” with his coworkers, he spent most of his time in his office. Indeed, in his TDIU application form (discussed below), he indicated that he quit work due to his PTSD. The examiner also noted that the Veteran experiences nightmares three to four times per month and that he wakes up in cold sweats almost every day. The Veteran disclosed that he has concentration and memory problems, and he finds this frustrating. Notably, he explained that he had fleeting suicidal thoughts about two years ago, although “these thoughts were easily dismissed and he has not been a threat to himself.” Later that year, during an August 2012 hearing before a Decision Review Officer, the Veteran again reported sleeping three or four hours per night, and that he experiences flashbacks three or four times per week. He noted that he dislikes the smell of gasoline because it triggers flashbacks. Again, the Veteran reported difficulty getting close to people and spending time in large crowds. He said that he does not usually participate in family gatherings for this reason. He is hypervigilant and he always checks his surroundings. He tried group therapy, but he found it too stressful. In a May 2012 VA examination that followed shortly thereafter, the Veteran was finally diagnosed with PTSD and depressive disorder. The examiner explained that these conditions are comorbid with overlapping symptoms. Like examiners before him, he found that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran’s symptoms were similar to those noted above, but also included more severe symptoms such as disturbances of motivation and mood, difficulty adapting to stressful circumstances including work or a worklike setting, an inability to establish and maintain effective relationships, suicidal ideation, and impaired impulse control. The Veteran reported experiencing increasing problems with memory and, particularly, forgetting tasks and forgetting thoughts while engaging in conversation. He sleeps only three hours per night and his depression increased since the loss of several nieces. Several months later, at a February 2013 VA examination, the examiner noted similar symptoms and the same level of occupational and social impairment. In particular, the examiner noted that the Veteran experienced occasional thoughts of hurting himself. The Veteran reported an inability to have loving feelings, as well as intense psychological and physiological distress at exposure to internal or external cues that symbolize or resemble an aspect of his trauma. With regard to work, the examiner explained that although the Veteran may experience limitations in his ability to maintain employment, his moderate symptoms do not completely prevent him from engaging in gainful employment. The following month, in a June 2013 statement, the Veteran reported frequent flashbacks from loud noises including cars backfiring and doors slamming, and that he had very poor relationships with everyone. He noted that he frequently dreams about Vietnam and becomes tearful and sweaty. At his May 2014 hearing before the Board, the Veteran explained that he has never been able to rid of the smell of burning flesh from his nose or the taste of it from his mouth. He sleeps, at most, three hours per night and his day starts at four-thirty in the morning. He does not trust anyone or the environment he lives in, he checks that his doors are locked at night, and he is constantly watching people. With regard to his family, he reiterated that he does not have a relationship with his kids, in part, because he has been unable to trust them or form a bond with them. He only opens up to his best friend, who also served in Vietnam. As for work, the Veteran explained that he is unable to work due to his PTSD because he is never rested and so he cannot think clearly. In addition, he does not like being around people and he does not believe he can learn to be around new people. He is confident that if he got a new job, he would not “last long.” Regarding his former job at the television station, the Veteran explained that he stayed in his office most of the time and only communicated with clients over the phone, with the occasional in-person meeting. He said that he quit because he did not enjoy the work anymore or being around a lot of people. He felt unable to do his job competently as a result of his inability to get any rest or think clearly. He noted that he sometimes had problems with his employer and clients when he would input orders incorrectly, due to his memory loss. Since he could not do his job correctly, he needed to move on. After he left his job, he wanted to find new work, but he “couldn't find anything that [he] thought would interest [him], and keep [him] motivated.” In March 2016, a VA examiner was asked to consider the Veteran’s testimony before the Board and to reconcile it with prior examinations that found that the Veteran had difficulty adapting to stressful circumstances, including work or a worklike setting. The examiner found that the Veteran has moderate PTSD symptoms that do not severely impact his social and occupational functioning. Later, an August 2016 VA addendum opinion was commissioned to address recent findings that the Veteran experienced suicidal ideation, impaired impulse control, and difficulty working. The examiner found that there appeared to be some improvement in mental health functioning on the February 2013 examination, and that Veteran’s most recent symptoms are moderate. He concluded that the Veteran experiences moderate occupational and social impairment in work efficiency that does not significantly limit his ability to perform occupational tasks or social activities. Finally, the Veteran underwent a final VA examination in October 2016 at which he was diagnosed with PTSD and unspecified depression with anxious distress, all of which are noted as comorbid with overlapping symptoms. The examiner found that the Veteran experienced occupational and social functioning 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. However, notably, the examiner indicated that the Veteran was unable to establish and maintain effective relationships. He also indicated that he experienced auditory hallucinations: “I hear people call my name and I look around and no one is there.” The examiner noted feelings of guilt and shame regarding his poor relationship with his kids, withdrawal from people, obsessive thoughts, compulsive behavior, physical aggression toward his son, and nightmares. He also noted, flashbacks, sleep problems, hypervigilance, exaggerated startle response and avoidance behaviors. Based on the foregoing, the Board finds that, for the period from September 5, 2006 to December 31, 2010, a disability rating in excess of 50 percent for PTSD is not warranted. The evidence shows that the Veteran experienced occupational and social impairment with reduced reliability and productivity due to such symptoms such as, flashbacks and nightmares three or four times per week, impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining relationships. Specifically, the Veteran was often irritable and he experienced anger outbursts. He was always cautious when he left the house and he isolated himself both in his private life and at work. In terms of his relationships, the Veteran’s social life was “significantly compromised” due to his PTSD. He was unable to get close to his children and his children did not want to be around him due to his short temper. He struggled to trust anyone except his “close friends.” The Veteran was often plagued by flashbacks and nightmares related to his Vietnam service. A 70 percent rating is not warranted for this period because, while the evidence shows the Veteran was often angry and irritable, he never became physically violent. Although he was hypervigilant when he left the house, he would go to dinner with his girlfriend without difficulty. In addition, he played tennis on a few teams and he enjoyed travelling. Although the Veteran was noted as chronically sad and depressed, at least some of this was attributable to his brother’s recent death, and he did not experience any suicidal ideation. In terms of his relationships, although the Veteran was unable to get close to his children, he nevertheless maintained a long-term relationship with his girlfriend for several years despite his reluctance to commit. Regarding work, he had successfully maintained the same job for twenty-five years. He did not experience any problems at work due to his PTSD, nor did he ever miss any work because of it. As for the period from December 31, 2010, the Board finds that a 70 percent disability rating is warranted. The evidence shows that the Veteran last worked on December 31, 2010, before quitting his job. Although the Veteran explained that he quit because he was “tired of it,” he noted also that he suffered from memory problems that made it difficult for him to do his job properly and that he could not tolerate being around other people. In addition, his sleep impairment and nightmares prevented him from getting adequate rest so that he could perform optimally at work. He felt defeated that he could no longer do his job as well as he once could and he attributed his difficulties to his PTSD. Indeed, an examiner in May 2012 noted that the Veteran now found it difficult to adapt to stressful situations, including work or a worklike setting. As for his social life, in June 2011, the Veteran reported that his relationships were “worse than ever.” Although it is not explicitly noted, it appears that he was no longer dating his long-term girlfriend, as she is not noted in any of the Veteran’s records going forward. By February 2012, the Veteran reported that he did not have any current close relationships and, by May 2012, a VA examiner remarked that the Veteran was now unable to establish and maintain effective relationships. This was reiterated by an examiner in February 2013 that took note of the Veteran’s “inability to have loving feelings” and, in October 2016, another VA examiner made similar remarks. Notably, in February 2012, the Veteran reported that he had fleeting suicidal thoughts two years prior, in 2010. In May 2012, a VA examiner noted that the Veteran experienced current suicidal ideation. His PTSD symptoms were markedly more severe than before, and they included not only suicidal ideation, but also impaired impulse control, as well as the inability to maintain relationships, as noted above. Indeed, by February 2013, an examiner noted that the Veteran experienced “intense psychological and physiological distress” caused by exposure to reminders of his trauma; and, in June 2013, the Veteran reported dreams about Vietnam that left him tearful and sweaty. By October 2016, the Veteran was experiencing auditory hallucinations. Overall, the marked increased in the severity and intensity of the Veteran’s symptoms, his unwillingness to continue working due to his PTSD symptoms, and his inability to maintain effective relationships warrant a 70 percent rating. A 100 percent rating is not appropriate, however, because the evidence does not show total occupational and social impairment. Although the Veteran quit his job in 2010, the record does not indicate that this was from a sheer inability to work. Indeed, in February 2013, the Veteran’s examiner noted that while the Veteran experiences limitations regarding employment due to his PTSD, his symptoms do not completely prevent him from engaging in gainful employment. The Veteran explained that his difficulties working resulted from feeling unrested due to his nightmares, an inability to think clearly, and the fact that he does not like being around people. He left work because he did not enjoy it anymore and he felt that he could do his job properly due to his symptoms. However, he was never reprimanded for any attitude problems, poor performance or otherwise, and he was not fired. Rather, he simply told his employer that he wished to retire. VA medical opinions from March and August 2016 confirm that the Veteran was not totally occupationally impaired and he was not significantly limited in his ability to work. Socially, the record is clear that the Veteran was unable to establish or maintain relationships, but the Veteran reported having one close friend that also served in Vietnam, in whom he felt he could confide. Moreover, the Veteran did not experience gross impairment in thought processes or communication, peristent delusions or hallucinations, or grossly inappropriate behavior. While he did experience suicidal ideation, there is no indication that he was in persistent danger of actually harming himself or others. Similarly, there is no indication that the Veteran was disoriented or that he could not take care of himself. Accordingly, the Board finds that for the period prior to December 31, 2010, a disability rating in excess of 50 percent is not warranted. However, for the period from December 31, 2010, a disability rating of 70 percent, but no higher, is appropriate. 2. Entitlement to a TDIU VA regulations allow for the assignment of a TDIU when a veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities and when the veteran has certain combinations of ratings for his service-connected disabilities. If the veteran has only one such disability, that disability must be ratable at 60 percent or more. If he has two or more disabilities, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). A finding of entitlement to a TDIU depends on the impact of a veteran’s service-connected disabilities on his ability to secure and follow substantially gainful employment in light of factors such as his work history, education, and vocational training. 38 C.F.R. § 4.16. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran can perform the physical and mental acts required by employment, not whether he can actually find employment. Advancing age and the impairment caused by nonservice-connected disabilities are not considered. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the purposes of evaluating whether a TDIU is warranted, marginal employment, or employment provided on account of disability or special accommodation, is not considered substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). For the period prior to December 31, 2010, the Veteran is service-connected for PTSD with a disability rating of 50 percent. He also has a 10 percent rating for his service-connected diabetes mellitus, type II, and a 10 percent rating for his status post laceration of the right upper arm with a stable scar. The Veteran’s combined evaluation is 60 percent. Accordingly, for this period, the Veteran does not meet the schedular requirements for a TDIU. For the period from December 31, 2010, as a result of the decision above, the Veteran has a disability rating of 70 percent for his PTSD. He also has the same 10 percent ratings for his diabetes mellitus, type II, and his laceration of the right upper arm. His combined evaluation is 80 percent. As of November 1, 2012, the Veteran’s disability rating for diabetes was increased to 20 percent. His combined evaluation, at that point, is also 80 percent. Accordingly, for the period from December 31, 2010, the Veteran meets the schedular requirements for a TDIU. Unfortunately, a TDIU is not warranted because the record lacks sufficient evidence that the Veteran was rendered unable to maintain substantially gainful employment due to his service-connected disabilities. To the contrary, the record indicates that, although the Veteran quit his long-term job as a sales executive in December 2010 due, in part, to his PTSD symptoms, he was not rendered unable to work. In his February 2013 formal application for a TDIU, the Veteran indicated that he left his job due to his PTSD. There is no indication that the Veteran applied for disability benefits from the Social Security Administration (SSA). To the contrary, a handwritten notation on the Veteran’s TDIU form indicates that the Veteran retired as an executive and that he receives, instead, retirement benefits from the SSA. In a Request for Employment Information form completed by the Veteran’s former employer in April 2013, the employer indicated that the Veteran left work for “other employment” and that no concessions or accommodations were ever made at work regarding the Veteran’s disabilities. As discussed above, the Veteran explained that he left his job because he was “tired of it” and, although he looked for a new job after his retirement, he could not find anything that interested him. He explained that his memory problems, his sleep impairment, his nightmares, and his inability to be around people made him feel as though he could not do his job properly, and so he felt compelled to quit. However, the fact remains that the Veteran was never reprimanded for his attitude, conduct or performance at work, and he never missed any work due to his PTSD. Indeed, the numerous VA examinations and opinions cited above all concluded that the Veteran’s ability to work was only moderately affected by his PTSD. While the Board sympathizes with the Veteran and understands that the Veteran’s PTSD posed certain challenges at work that made working no longer enjoyable, the weight of the probative evidence simply fails to demonstrate that the Veteran’s service-connected disabilities prevented him from securing and maintaining substantially gainful employment. (continued on next page) Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to a TDIU is denied. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel