Citation Nr: 1807625 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 15-12 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 4. Entitlement to a total disability evaluation based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty from January 1966 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania (hereinafter Agency of Original Jurisdiction (AOJ)). In preparing to decide the issue on appeal, the Board has reviewed the contents of the Veteran's electronic files, including the Content Legacy Manager and Veterans Benefit Management System (VBMS) claims files, using Caseflow Reader. Some relevant treatment records are located in the Legacy Content Manager, and all records are now in these electronic systems. The Veteran testified at an October 2017 Travel Board hearing before the undersigned. A transcript of those proceedings is associated with the Veteran's VBMS file. During the October 2017 Travel Board hearing, the Board took jurisdiction of the issue of entitlement to TDIU, as reflected on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009). During the October 2017 Travel Board hearing, the Veteran's representative requested waiver of initial review by the AOJ for further evidence submitted concerning this appeal. See 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. A final AOJ rating decision dated July 1970 denied service connection for bilateral hearing loss on the basis that the Veteran did not have hearing loss at that time. 2. Evidence added to the record since the July 1970 AOJ rating decision is new and material as it includes previously unconsidered medical evidence reflecting a current disability and the etiology of that disability. 3. The Veteran experienced hearing loss during service, both during and subsequent to combat, and his current bilateral hearing loss is due to service. 4. For the entire appeal period, the Veteran's PTSD was manifested by evidence of occupational and social impairment with deficiencies in most areas, including suicidal ideation. 5. The Veteran's PTSD has rendered him unable to obtain and maintain substantially gainful employment for the entire appeal period. CONCLUSIONS OF LAW 1. Following the prior final denial of July 1970, new and material evidence has been presented to reopen a claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1154(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. The criteria for entitlement to a 70 percent rating for PTSD, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411. 4. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). II. New and Material Evidence If a claim of entitlement to service connection is denied by an AOJ decision and no notice of disagreement or additional evidence is filed within one year, that decision becomes final and generally cannot be reopened or allowed. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. Once that decision becomes final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Evidence is new and material if it: (1) has not been previously submitted to agency decision-makers; (2) by itself or in connection with evidence previously included in the record, relates to an unestablished fact necessary to substantiate the claim; (3) is neither cumulative nor redundant of evidence already of record at the time the last prior final denial of the claim sought to be opened; and (4) raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Further, the threshold for raising a reasonable possibility of substantiating the claim is low. Shade, 24 Vet. App. at 117. Evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). For the purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence submitted since the last final AOJ or Board decision will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). However, the benefit of the doubt doctrine does not apply to a new and material analysis. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). In general, service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C.A. § 1110. 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). In July 1970, the AOJ denied entitlement to service connection for bilateral hearing loss on the basis of no current disorder. The evidence of record at that time included a VA examination reflecting normal hearing bilaterally. See April 1970 VA Examination. By letter dated July 1970, the Veteran was notified of this decision. However, the Veteran did not appeal or submit new and material evidence within the one-year appeal period after notice of the decision was provided. Hence, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The evidence received since the July 1970 decision includes previously unconsidered medical evidence reflecting a current bilateral hearing loss disorder and reflecting the etiology of that disorder. See, e.g., November 2017 Disability Benefits Questionnaire. This evidence relates to an unestablished fact needed to establish service connection (i.e., current disability and nexus). Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran's claim for service connection for bilateral hearing loss are met. III. Service Connection for Bilateral Hearing Loss Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the evidence must show (1) a present disability, (2) an 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). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process - or relatively close thereto - can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Service connection for certain chronic disorders, including sensorineural hearing loss, may be presumed where demonstrated to a compensable degree within 1 year following separation from qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For an enumerated "chronic disease" such as hearing loss shown in service (or within a presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). For the purpose of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold at any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores utilizing the Maryland CNC Tests are less than 94 percent. 38 C.F.R. § 3.385. Normal puretone thresholds during service do not necessarily preclude service connection. See 38 C.F.R. § 3.303(d); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). The Veteran seeks entitlement to service connection for bilateral sensorineural hearing loss. He served as a helicopter pilot in combat in the Republic of Vietnam. Therefore, the provisions of 38 U.S.C. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The Veteran currently has a diagnosis of bilateral sensorineural hearing loss under 38 C.F.R. § 3.385. See November 2017 Disability Benefits Questionnaire. Further, there is no dispute concerning the Veteran's exposure to acoustic trauma during combat. See, e.g., October 2017 Hearing Testimony. Therefore, the primary question before the Board is whether the Veteran's confirmed in-service noise exposure caused his current bilateral hearing loss. In this regard, the Veteran and his spouse have provided statements that he experienced hearing loss during service and immediately after returning from the Republic of Vietnam, but prior to discharge. See, e.g., January 1970 Claim; May 2012 Veteran Statement and Lay Statement. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves, 682 F.3d at 999. Thus, the Board finds that the Veteran manifested decreased hearing acuity during service pursuant to 38 U.S.C. § 1154(b) and Reeves. The Board observes that there is a presumption of service connection for a chronic disease such as sensorineural hearing loss, rebuttable only by clearly attributable intercurrent causes, which manifests during service and then again "at any later date, however remote." Groves, 524 F.3d at 1309. In this case, the Veteran currently manifests sensorineural hearing loss. While the Veteran was a helicopter pilot after his discharge, he used hearing protection during his post-service noise exposure. See November 2017 Disability Benefits Questionnaire; May 2012 Veteran Statement. Thus, pursuant to Groves, the Board finds that the criteria for entitlement to service connection for bilateral hearing loss have been met as there is no clear intercurrent cause of bilateral hearing loss shown by the record. Additionally, the file contains medical evidence that links the Veteran's hearing loss to his active duty service. A September 2012 letter from a private physician indicated that the Veteran's noise exposure during service is a factor in his current bilateral hearing loss. Additionally, a November 2017 Disability Benefits Questionnaire also contains the determination that his bilateral hearing loss was at least as likely as not caused by acoustic trauma as a result of military noise exposure. By contrast, during a July 2012 VA examination, the examiner determined bilateral hearing loss was not related to service because audiological examination upon separation from service reflected essentially normal hearing. However, normal puretone thresholds during service do not necessarily preclude service connection. See 38 C.F.R. § 3.303(d); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss is at least as likely as not related to noise exposure during active duty service. Additionally, the criteria for service connection for bilateral hearing loss is met when applying the combat provisions of 38 U.S.C. § 1154(b) as interpreted by Reeves, and the chronic disease presumption as interpreted by Groves. IV. Increased Rating for PTSD The Veteran seeks entitlement to an initial rating in excess of 50 percent for PTSD. Disability evaluations 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 his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing the appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran's claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). The Veteran's PTSD is rated at 50 percent disabling since November 24, 2014, under Diagnostic Code 9411. 38 C.F.R. § 4.130. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned where there is evidence of 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. Id. A 70 percent rating is assigned where there is evidence of 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; obsession rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Global assessments of functioning scores are a scale reflecting the "psychological, social and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), page 32). A global assessment of functioning score of 41 to 50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A global assessment of functioning score of 51 to 60 indicates the examiner's assessment of moderate symptoms (e.g., a flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A global assessment of functioning score of 61 to 70 indicates the examiner's assessment of mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well and having some meaningful interpersonal relationships. The global assessment of functioning score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the global assessment of functioning score must be considered in light of the actual symptoms of the veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The Board also notes that the global assessment of functioning scale was removed from the more recent DSM-5 for several reasons, including its conceptual lack of clarity and questionable psychometrics in routine practice. See DSM-5, Introduction, The Multiaxial System (2013). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to "DSM-IV," Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association , Fourth Edition (1994). The amendments replace those references with references to the recently updated "DSM-5." As the Veteran filed his substantive appeal in February 2016 (i.e., after August 4, 2014), the DSM-5 is applicable to this case. The Veteran began seeking treatment for an acquired psychiatric disorder in January 2014, and was diagnosed with adjustment disorder, major depressive disorder, and PTSD. See December 2014 VA Treatment Records. The Veteran's symptoms included sadness, tearfulness, and anger, but he denied suicidal ideation. See, e.g., March 2014 VA Treatment Records. During a March 2015 VA examination, the Veteran was diagnosed with PTSD, with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran reported living with his wife, and reported withdrawing from social activities and relationships since an increase of PTSD symptomology. The examiner indicated that the Veteran displayed moderate to serious level of impairment in social functioning. The Veteran reported retiring after turning 65, and the examiner indicated that the Veteran displayed a moderate level of impairment in occupational functioning. The Veteran's symptoms included depressed mood; anxiety; panic attacks occurring weekly or less often; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and obsessional rituals which interfere with routine activities. During the examination, the Veteran's appearance was neat and well-groomed; his behavior was appropriate; his mood was low; and his affect was full and unrestricted. The Veteran reported that he was able to fully and independently complete activities of daily living, and he denied suicidal ideation. In an August 2015 letter, the Veteran's VA psychologist indicated that the Veteran's PTSD symptoms had worsened. The psychologist indicated that these symptoms continued to include depressed mood, social withdrawal, sleeping problems, hypervigilance, anger outbursts, irritability, an exaggerated startle response, avoidance of crowds, among other symptoms. The psychologist further indicated that depression, irritability, and difficulty with motivation were the specific symptoms that had worsened. During treatment, the Veteran had an appropriate affect with a congruent mood, actively participated in the sessions, and denied suicidal ideation. See, e.g., August 2015, October 2015, and January 2016 VA Treatment Records. January 2016 VA treatment records further indicate that the Veteran reported increased social contact, increased family contact, and a better ability to tolerate crowded environments as a result of individual therapy sessions. He also reported allowing a relative to stay at his house, and a decrease in feeling of rage. July 2016 VA treatment records continued to reflect that the Veteran did not have suicidal ideation. Additionally, during counseling, the Veteran appeared casually dressed and groomed, with appropriate hygiene, a depressed mood, and an appropriate affect. On August 24, 2016, the Veteran underwent a VA examination. During that examination, the Veteran was diagnosed with PTSD, with occupational and social impairment with reduced reliability and productivity. The Veteran reported living with his wife, but having continuing difficulty managing his anger, which negatively affected the marriage. He reported a detached and stressful relationship with his children, and denied any close friends. The Veteran further reported attending a weekly Vietnam Veterans PTSD support group, but also reported that his social functioning had declined since his last evaluation. His wife also reported a decline in social functioning. The Veteran's symptoms included depressed mood; anxiety; panic attacks occurring weekly or less often; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and obsessional rituals which interfere with routine activities. During the examination, the Veteran's appearance and behavior was appropriate; his mood was dysphoric and his affect was congruent. He reported "daily" suicidal ideation, but with no plan or intent. The examiner indicated that the Veteran's symptoms remained in the moderate to severe range, with no significant changes in functioning since his previous evaluation. The record reflects that the Veteran has continued to seek treatment for PTSD. According to VA treatment records, the Veteran's PCL-5 (a self-reported measurement) scores have indicated severe-to-very-severe symptoms reported by the Veteran. See, e.g., August 2017 and October 2016 VA Treatment Records. Additionally, he now has diagnoses of anxiety disorder and depressive disorder, and he has continued to report passive suicidal ideation. See, e.g., May 2017 VA Treatment Records. During treatment, the Veteran recently reported symptoms of sleep disturbance and hypervigilance. October 2017 VA Treatment Records. Since August 24, 2016, VA treatment records reflect that sometimes the Veteran has reported passive suicidal ideation, and at other times has reported having no suicidal ideation. See, e.g., November 2017 and August 2017 VA Treatment Records. During his October 2017 hearing testimony, the Veteran testified to having suicidal ideation, among other PTSD symptoms, including sleep disturbance and memory problems. The Veteran also testified to refraining from contact with his daughter and son-in-law because he was afraid he might "get violent." The Veteran described witnessing the 9/11 terrorist attack while performing a private helicopter flight in 2001 and, within 6 months of this event, his PTSD symptoms significantly worsened. He had worked part-time as a helicopter pilot, and did not disclose his symptoms as he required a first class medical designation. His current symptoms began around 2006 with nightmares, crying spells, rage episodes, verbal outbursts, and hypervigilance. Additionally, in a letter date August 26, 2016, the Veteran's spouse indicated that the Veteran's symptoms were worsening. The Veteran's spouse indicated an increase in the Veteran's sleep disturbance; a deterioration in his ability to remember to properly groom himself; and a cessation of completing chores around the house. In a June 2017 statement, the Veteran's spouse described him as being in a downward spiral for the past 5 years. On review of the record, the Board finds that the Veteran's PTSD symptoms have more closely reflected the criteria for a rating of 70 percent disabled for the entire appeal period. The current symptoms include suicidal ideations and depression which were obvious at the 2017 hearing. The frequency and severity of those suicidal ideations rise to the level of clearly meeting the example under Diagnostic Code 9411 for a 70 percent rating. There is no doubt for the Board's that the Veteran's PTSD results in deficiencies of mood, judgment, family relations and thinking. The Veteran's spouse has described this level of impairment as existing for 5 years, and the Veteran credibly indicated that he did not initially fully discuss and disclose his overall PTSD symptomatology. Based on the testimony provided, the Board finds that the Veteran's PTSD symptomatology at the 70 percent level has been present for the entire appeal period. At no time, however, has the Veteran's symptoms more closely reflected the criteria for a 100 percent schedular rating. He is not subject to total occupational and social impairment. The Veteran does not manifest total social impairment as he maintains some relations with his spouse. He has suicidal ideations, but has not reported intent to harm himself or others. He has memory and concentration difficulties, but he has not been disoriented or have loss of memory for names of close relatives, own occupation, or own name. He demonstrates intermittent but not constant inability to perform personal hygiene. There are no reported delusions or hallucinations, or grossly inappropriate behavior. As such, a 100 percent schedular rating is not in order. However, the Board is convinced that the Veteran's PTSD has rendered him unable to obtain and maintain substantially gainful employment. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). As a result of this decision, the Veteran meets the schedular criteria for TDIU rating eligibility for the entire appeal period. Entitlement to a total rating must be based solely on the impact of a Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful work. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The question in a claim of entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities is whether a Veteran is capable of performing the physical and mental acts required by employment and not whether a Veteran is, in fact, employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (Court) discussed the meaning of "substantially gainful employment." In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. The Veteran's PTSD clearly prevents him from continuing work as a helicopter pilot. His PTSD also significantly interferes with his ability to deal with the public or manage stressful situations. The level of distress demonstrated by the Veteran at the hearing was quite evident and severe. Overall, the Board has the distinct impression that the Veteran's PTSD has precluded his ability to obtain and maintain substantially gainful employment for the entire appeal period. As such, the criteria for entitlement to TDIU have been met for the entire appeal period. ORDER The claim of entitlement to service connection for bilateral hearing loss is reopened. Service connection for bilateral sensorineural hearing loss is granted. Entitlement to a 70 percent rating for PTSD is granted. Entitlement to TDIU is granted for the entire appeal period. ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs