Citation Nr: 1808730 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 13-01 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder. 2. Entitlement to an effective date earlier than September 3, 2009, for the assignment of a 10 percent rating for the left knee status post partial medial meniscectomy and posterior cruciate ligament reconstruction. 3. Entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Todd S. Hammond, Attorney WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1991 to October 1993 and from October 2003 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2009 and March 2015 rating decisions of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran's PTSD has been manifested by occupational and social impairment with reduced reliability and productivity for the entire period on appeal. 2. Entitlement to a 10 percent rating for the service-connected left knee status post partial medial meniscectomy and posterior cruciate ligament reconstruction was not factually ascertainable prior September 3, 2009. 3. The Veteran has been shown to be unable to secure or follow substantially gainful employment due to his service-connected disabilities as of December 25, 2008. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 50 percent, but not higher, for PTSD have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. An effective date earlier than September 3, 2009, for the assignment of a 10 percent rating for the left knee status post partial medial meniscectomy and posterior cruciate ligament reconstruction is not warranted. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2017). 3. The criteria for a TDIU have been met as of December 25, 2008, but not prior to that date. 38 U.S.C. §§ 1155; 5107(b) (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice most recently in January 2010. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claims, 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.3d 1375 (Fed. Cir. 2015). II. PTSD A. Law and Regulations The Veteran's psychiatric disability is currently rated 30 percent disabling, under Diagnostic Code 9411. 38 C.F.R. § 4.130 (2017). PTSD is rated under the General Rating Formula for Mental Disorders. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 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; 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 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. A maximum 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 or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (2017). The symptoms associated with the rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A veteran may only qualify for a 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). When rating 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 a rating 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. 38 C.F.R. § 4.126(a) (2017). VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2017). Global Assessment of Functioning (GAF) scores are based on a scale indicating the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Carpenter v. Brown, 8 Vet. App. 240 (1995); Richard v. Brown, 9 Vet. App. 266 (1996); American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, 4th Ed. (1994) (DSM-IV). The GAF score is based on all of a veteran's psychiatric impairments. While particular GAF scores are not contained in the VA schedule of ratings for mental disorders, they are a useful tool in assessing a veteran's disability and assigning ratings. However, they are just one of many factors considered when determining a rating. 38 C.F.R. § 4.130 (2017). A GAF of 31 to 40 is defined as exhibiting some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work, child frequently beats up younger children, is defiant at home, and is failing at school). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideations, 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 GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score between 61 and 70 is indicative 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, has some meaningful interpersonal relationships. See 38 C.F.R. § 4.130 (2012) [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. See 38 C.F.R. Part 4. The percentage ratings contained in the rating schedules represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service, and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After considering all information and lay and medical evidence of record, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. B. Factual Background At a July 2009 VA PTSD examination, the Veteran reported sleep disturbance, irritability or anger, difficulty concentrating, hypervigilance, and exaggerated startled response. The Veteran indicated that he was divorced from his first wife and that he had a shared custody arrangement of his three children. The Veteran noted that he was currently living with his fiancé. The Veteran indicated that he had some limitations in activities due to his physical injuries. The Veteran indicated a satisfactory relationship with his co-workers and that most of his activities involved family and shared activities with his children. The Veteran reported involvement in some church activities like choir. The examiner indicated that the Veteran was neatly groomed, and his speech was spontaneous, clear, and coherent. The examiner noted that the Veteran's attitude was cooperative, affect full, and mood anxious and dysphoric. The examiner reported that the Veteran was oriented to person, place, and time, thoughts unremarkable. The Veteran denied any delusions, hallucinations, obsessive/ritualist behavior, panic attacks, episodes of violence, or suicidal or homicidal ideations. The examiner indicated that the Veteran was able to maintain minimum personal hygiene and maintain activities of daily living. The examiner diagnosed the Veteran with mild to moderate PTSD. A GAF score of 60 was assigned to the Veteran. The examiner opined that the Veteran's PTSD caused him occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner indicated that the Veteran was able to work in his field of computer technology, although he was currently unemployed due to a lay-off. The examiner noted that the Veteran experienced considerable stressors in his previous marriage but that he was now divorced, living with his fiancé, and has a stable schedule and fulfills his parenting responsibilities. On a September 2009 Statement in Support of Claim, the Veteran reported that he has had six jobs in the last two years, panic attacks weekly, sleep disturbance, and daily angry outbursts. On an October 2009 VA Mental Health Screening note, the Veteran reported that he was diagnosed with post-deployment depression after returning from Iraq in March 2005. The Veteran was diagnosed with PTSD. A GAF score of 55 was assigned to the Veteran. In a November 2009 statement, the Veteran reported that although he is generally able to function satisfactorily due to long standing routines. The Veteran indicated that his inability to hold a job, six jobs in the last three years make his virtually un-hirable. The Veteran noted that on many occasions his previous employers cited personality conflicts as well repeated absences, due to panic attacks, migraine headaches, and an inability to follow through on projects or complete tasks as contributing factors to his reduced reliability and productivity at work. The Veteran reported that he suffered from occasional episodes of short term and long term memory loss, forgetting names, places or completing tasks both at home and on the job. The Veteran noted that his social circle had been greatly reduced as a result of his angry outbursts, including hurting others and rarely himself. The Veteran indicated that his depressive episodes led to a general lack of desire to communicate and suspiciousness of his surroundings. The Veteran noted that his PTSD symptoms were a major factor in ending his two previous marriages and three relationships. The Veteran reported that his friendships and relationships have ended except for the relationship with his parents, direct relations and friends of over two decades. The Veteran indicated an overall decrease in feelings of pleasure or emotional expressiveness such as his ongoing enjoyment, happiness, fun, interest, and satisfaction. The Veteran noted that he was prone to irritability, angry outburst, weight issues, and sleep disturbances. On an October 2010 VA Mental Health Treatment note, the Veteran reported symptoms of depression, nightmares, difficulty sleeping, anger, isolation, difficulty with driving, and hypervigilance. The Veteran denied any suicidal or homicidal ideations. The Veteran showed some pain after sitting for a prolonged period of time. The psychologist noted that the Veteran was casually dressed, grooming and hygiene appropriate, speech normal, mood "o.k.", affect mildly irritated at times. A GAF score of 55 was assigned to the Veteran. At a February 2010 VA PTSD examination, the Veteran reported symptoms of nightmares, sleep difficulty, depression, and irritability. The Veteran indicated that he currently lived alone and that he had moved several times in the past two months, partially due to the separation from his wife. The Veteran noted that he has physically custody of his three children for ten days each month. The Veteran indicated that he hangs out with other people and that he has a lot of friends, whom he saw one to two times per month. The Veteran denied any suicidal ideations. The examiner reported that the Veteran was casually dressed, well groomed, affect within normal limits, mood dysphoric. The examiner noted that the Veteran's speech was clear, thoughts logical and goal directed. The examiner indicated that the Veteran was oriented to person, place, and time. The Veteran denied any hallucinations or delusions. The Veteran reported some difficulty in completing his activities of daily living, specifically completing personal hygiene. The examiner diagnosed moderate PTSD and assigned a GAF score of 58. On a March 2010 VA Medication Management Note, the Veteran reported symptoms of irritability and anger. The examiner noted that the Veteran was neatly groomed, affect irritable, speech spontaneous, and thought process organized and linear. The Veteran denied any suicidal or homicidal ideations. On a March 2010 VA Mental Health Treatment Note, the Veteran reported symptoms of irritability. The psychologist noted that the Veteran's affect was restricted and thoughts were logical. The Veteran denied any suicidal or homicidal ideations. On a March 2012 VA Mental Health Treatment Note, the Veteran was diagnosed with PTSD related to military trauma and attention deficit hyperactivity disorder. A GAF score of 55 was assigned to the Veteran. On an August 2012 VA Mental Health note, the Veteran reported that he was doing pretty good, he had gotten married, he had a new baby, and that he was taking online college classes. The examiner noted that the Veteran was cooperative, affect congruent, well organized and goal oriented. On a March 2013 VA Mental Health Medication Management Note, the Veteran reported symptoms of difficulty sleeping, depressed mood, anger, hypervigilance, and nightmares. The Veteran noted that he lived alone and that he had not worked since 2008. At a January 2014 VA mental health consultation, the Veteran reported that he did not follow-up on mental health services in 2010 and that he dropped out of treatment. The nurse practitioner found that the Veteran appeared anxious and restless or jittery with rapid speech but well organized. At a February 2015 VA PTSD examination, the Veteran reported depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The Veteran indicated that he was living with his wife and three to five children depending on the weekend. The Veteran noted that his wife was going to counseling for the past six months for stress and dealing with how to deal with the Veteran's anger issues. The Veteran indicated that he attended school full time, two days a week and that one of the three classes is online. The Veteran noted that he missed classes due to migraines and struggles to keep up with the homework. The examiner opined that the Veteran's PTSD symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner reported that the Veteran was appropriately dressed and groomed, normal speech, and full affect. The Veteran denied any suicidal or homicidal ideations. At a September 2017 Board hearing, the Veteran reported symptoms of near constant depression, impairing his ability to function independently, requiring constant medication, anxiety, requiring medication, therapy, chronic sleep disturbance, nightmares, startled response when waking, explosive personality, impulse and anger, inability to maintain family or friend relationships. The Veteran testified that he has a strained relationship with his immediate family and almost no contact with his extended family. He noted that he could not go to movies because he cannot have a full theater and he has to be in the back seat of the very back row. The Veteran stated that he could not go to any kind of functions like concerts because he has to be in the very back row and the noise caused him anxiety. The Veteran reported that he was constantly checking the doors and locks and that if something is out of the normal, he goes into immediate clearance mode where he clears the home. He indicated that he had an almost obsessive compulsive need for things to be in their exact place. He indicated that his wife had to drive because he was very anxious in traffic and he did not like cars all around him. The Veteran reported that he was on multiple medications for his depression and difficulty sleeping. The Veteran noted that he had nightmares and that he struck his wife in his sleep. He indicated that he almost threw his children across the room when they come to try to wake him. He noted that he chased away most of his friends except one, another veteran who lives two hours away and he sees him maybe once a month when they go out to lunch. He indicated that he forgets to shower, shave, change his clothes or take his medication if his wife does not remind him. The Veteran's wife stated that the Veteran was very ritualistic in nature and that all the blinds and doors have to be closed in the house. The Veteran's wife noted that the Veteran had to check the locks and pat his pockets and check to make sure he had everything to leave the house effectively. The Veteran's wife indicated that the Veteran is either depressed, flattened affect, wants to be alone and isolated. The Veteran's wife noted that if the Veteran gets very anxious he will get super focused on something like cleaning. She indicated the Veteran missed a number of VA appointments because it is very difficult to get out the door because he is very prone to irritability, anger, and outbursts. She noted that the Veteran has punched holes in the wall and thrown televisions as a result of his anger. In a December 2017 letter, D.G., Dean of Student Life, Portland State University, stated that during the Veteran's time as a student during the Fall 2012 through Spring 2016, he worked with the Dean of Student Life, specifically the C.A.R.E. program to help address barriers to his academic success in reference to his PTSD diagnosis. C. Analysis The Veteran contends that his service-connected PTSD is more disabling than the 30 percent evaluation assigned. Based on a review of the evidence, the Board finds that the Veteran is entitled to a 50 percent rating for the PTSD during the entire period on appeal. Throughout the appeal, the Veteran's PTSD symptoms were manifested by ongoing symptoms of sleep impairment, depression, anxiety, irritability, intrusive thoughts, flattened affect, hypervigilance, an exaggerated startle response, panic attacks, impairment of short-term memory (e.g. forgetting to complete tasks), disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Those symptoms more nearly approximate occupational and social impairment with reduced reliability and productivity, the criteria for a 50 percent rating. The Board recognizes that the symptoms noted in the rating schedule are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, even though not all the listed symptoms compatible with a 50 percent rating are shown, the Board concludes that the type and degrees of symptomatology contemplated for a 50 percent rating appear to be demonstrated throughout the appeal period. Moreover, the Board finds that a rating higher than 50 percent is not warranted for any part of the appeal period. The evidence shows that he is able to manage symptoms with various levels of medication and maintained independent functionality. The evidence of record does not show symptomatology commensurate with a 70 percent rating demonstrating deficiencies in most areas or a 100 percent schedular rating, demonstrating total occupational and social impairment. While the Veteran has reported some exacerbations of his psychiatric symptomatology at points during the appeal, he has been married and maintained a good relationship with his children. There is no evidence of more severe symptomatology to suggest occupational and social impairment with deficiencies in most areas or total social and occupational impairment. Even considering the Veteran's reports of hypervigilance and depression, the occupational and social impairment attributable to the PTSD does not amount to more than intermittent decreases in work efficiency and occasional periods of social impairment. There is no evidence the Veteran was a persistent danger to himself or others, and there is no history of any suicide attempts. VA treatment records and the VA examination reports note the Veteran denied a present intent of suicide or homicide. In addition to the Veteran psychiatric symptoms, the Board notes the assigned GAF scores ranging from 55 to 60 have been assigned during the appeal period, and, alone, they do not support the assignment of any higher rating during the appeal. A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score, like an examiner's assessment of the severity of a condition, is not dispositive of the rating issue. Rather, the GAF scores must be considered in light of the actual symptoms of the Veteran's disability, which provide the primary basis for the rating assigned. 38 C.F.R. § 4.126(a). In reaching the above conclusions, the Board has considered the Veteran and his wife's statements/testimony regarding the severity and frequency of psychiatric symptoms. The Veteran and his wife are competent to report on factual matters of which they have first-hand knowledge, such as experiencing and observing an increased level of psychiatric symptomatology. Washington v. Nicholson, 19 Vet. App. 362 (2005). That is evidence to support the higher 50 percent rating. However, even considering the Veteran's and his wife's statements/testimony, the VA examination reports and other probative evidence of record have consistently shown that the Veteran's service-connected psychiatric disability has resulted in no more than occupational and social impairment with reduced reliability and productivity and not deficiencies in most areas and not total occupational and social impairment. The Board finds that those reports and the treatment records are the most persuasive evidence of record. Thus, to the extent that the Veteran asserts that his service-connected PTSD is worse than 50 percent disabling, the Board points out that the predominant findings on the VA clinical examinations and treatment reports over the years do not establish that he has more severe disability in this respect. Accordingly, the Board finds that the criteria for an initial 50 percent rating, but not higher, for PTSD are met. However, the preponderance of the evidence is against the assignment of a rating greater than 50 percent. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. EED A. Factual Background On a February 2007 VA Primary Care Note, the Veteran complained of left knee pain since his knee surgery in August 2006. The Veteran reported that he took Tylenol for pain relief. On physical examination, the Veteran had flexion and extension. The examiner assessed chronic left knee pain. On an April 2007 VA Primary Care Nursing Note, the Veteran reported that he had left knee surgery in August 2006 and that he still had difficulty moving and bending his left knee. On an April 2007 VA Primary Care Initial Evaluation Note, the Veteran reported left knee pain. On physical examination, the Veteran had normal range of motion and no bone, joint, or muscle tenderness. On a March 2009 VA Primary Care Outpatient Note, the Veteran reported weakness in his knees. On an August 2009 VA Emergency Department Note, the Veteran reported left knee pain that increased with walking and climbing stairs. On physical examination, strength was 5/5 for knee extension and flexion and 5/5 for dorsi and plantar flexion and sensation was equal and intact. On an August 2009 VA Primary Care Outpatient Note, the Veteran complained of left knee pain. He reported that the plain was dull, throbbing and aching. At an August 2009 VA Joints examination, the Veteran reported that both knees caused him problems and that they ache and swell with repetitive movement. The examiner diagnosed the Veteran with status post left knee partial medial meniscectomy. The Veteran denied the use of any assistive devices or braces. On physical examination, the examiner reported that the Veteran's knees did not have any swelling, deformity, discoloration, or intraarticular effusion or negative fluid wave. The examiner noted that the Veteran had tenderness to the infrapatellar tendon bilaterally and that there was no ligamentous instability to anterior drawer, Lachman, varus/valgus. The examiner indicated that muscle strength was 5/5 and range of motion was to zero degrees for extension and to 135 degrees for flexion without pain and with no change on repetition. The examiner assessed that it was within reason that the Veteran would lose between zero and five degrees of his overall range of motion, strength, coordination, and fatigability associated with repetitive movement flares. The examiner indicated that x-rays were normal. On a September 2009 VA Physical Therapy Consultation, the Veteran reported left knee popping, feeling unstable, not holding him up, swelling, and stiffness in the morning. The Veteran indicated that he could no longer run or jog and that he had limited walking as a result of his left knee. The Veteran noted that he could not climb stairs or play with his children as a result of his left knee. The physical therapist assessed a left knee ACL deficiency. At a September 2017 Board hearing, the Veteran testified that his knee symptoms included locking, inability to properly extend, weakness of the knee and requiring knee braces and canes to walk. The Veteran reported that he had to take pain medication for his knee. B. Analysis The Veteran seeks an earlier effective date for the award of a 10 percent disability rating for his service-connected left knee status post partial medial meniscectomy and posterior cruciate ligament reconstruction. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to that rule provides that the effective date of an award of an increase shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2), 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997). Thus, when addressing the effective date for an award of increased compensation, the Board must determine when a claim for increased compensation was received, and when a factually ascertainable increase in disability occurred. With respect to the first of these determinations and as pertinent herein, the Board notes that once a formal claim for VA benefits has been filed, a subsequent informal request for increase will be accepted as a claim. 38 C.F.R. § 3.155(c). Generally, the informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Additionally, during the period at issue, VA or uniformed services medical records may form the basis of an informal claim for increased benefits where a formal claim for service connection has already been allowed. 38 C.F.R. § 3.157. Under 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. Otherwise, in the case of evidence from a private physician, date of receipt of any record or report will be accepted as the date of receipt of a claim. 38 C.F.R. § 3.157(b)(2). The Veteran was awarded service connection for left knee status post partial medial meniscectomy and posterior cruciate ligament reconstruction in a rating decision dated in August 2009, which assigned a noncompensable disability rating, effective December 21, 2007. The following month, in September 2009, the Veteran's representative submitted a Statement in Support of Claim requesting a review of the August 2009 rating decision and a higher rating for the left knee disability. A September 2009 rating decision granted a 10 percent rating, effective September 3, 2009, the date of treatment showing increased symptoms. The Veteran submitted a letter in November 2009 and asserted that an earlier effective date, December 2007, the effective date of the grant of service connection, was warranted. As an initial matter, the Board notes that the effective date of an award of increased compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). As noted above, the Veteran has been awarded a 10 percent rating for his service-connected left knee status post partial medial meniscectomy and posterior cruciate ligament reconstruction effective September 3, 2009. This award was based on the VA physical therapy treatment note of that date, which showed that the Veteran had left knee popping, feeling of instability and not holding him up, swelling, and stiffness in the morning. In accordance with the governing law and regulations outlined above, the Board's inquiry is limited to whether the evidence shows that the Veteran's left knee status post partial medial meniscectomy and posterior cruciate ligament reconstruction first met the criteria for a 10 percent rating in the year preceding September 3, 2009. The Veteran's left knee status post partial medial meniscectomy and posterior cruciate ligament reconstruction is rated at 10 percent under Diagnostic Code 5257. With instability which is severe, moderate, and slight, disability ratings of 30, 20, and 10 are assigned, respectively. 38 C.F.R. § 4.71a. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 (2017). In order to qualify for an earlier effective date, the evidence would have to demonstrate slight recurrent subluxation or lateral instability at a date certain within the one-year period prior to receipt of the claim. It is not factually ascertainable that the Veteran met the criteria for a 10 percent rating in the year prior to September 2009 (the date of treatment showing increased symptoms). In order to grant an earlier effective date on this basis, there would have to be evidence that the Veteran met the criteria for a 10 percent rating at a distinct time between September 2008 and September 2009. See also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). See also 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. A review of the Veteran's private and VA medical records does not show any explicit evidence of an increase in disability during this time period that would allow for extending the effective date back based on his symptoms. In sum, there is no evidence earlier than the September 2009 treatment note demonstrating slight left knee instability and an increase in severity is not factually ascertainable prior to September 3, 2009. Thus, a preponderance of the evidence is against the claim for an earlier effective date for the Veteran's 10 percent rating for left knee status post partial medial meniscectomy and posterior cruciate ligament reconstruction; there is no doubt to be resolved; and an earlier effective date for the Veteran's 10 percent rating for left knee status post partial medial meniscectomy and posterior cruciate ligament reconstruction is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. IV. TDIU A. Law and Regulations A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b). Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Although the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, 2.F.24.c defines the term as employment "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether his service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a TDIU is appropriate should not be 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. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). B. Factual Background At a July 2009 VA PTSD examination, the Veteran reported that he worked briefly for Nike as an I.T. consultant before he was laid off in December 2008. The Veteran indicated that he was still unemployed. The examiner indicated that the Veteran had been unemployed for less than one year. The examiner noted that the Veteran had good skills but that he had difficulty securing employment due to economic conditions impacting the hi-tech industry. At an August 2009 VA Joints examination, the Veteran reported that he had not worked since December 2008 when he was laid off of his job working in I.T. for Nike. At a February 2010 VA PTSD examination, the Veteran reported that he was currently unemployed. He indicated that the last time that he worked was sixteen months ago, working at Nike as an I.T. manager for two months. The Veteran noted that he was fired from that job due to missing work for medical reasons and having anger difficulties on the job. The Veteran indicated that he missed one to two days a week of work for medical reasons. The Veteran noted that he had not had a job for longer than two months since returning from Iraq. The examiner opined that it was less likely than not that the Veteran was unemployable based on his PTSD. The examiner noted that the Veteran reported anger difficulties on the job although he seemed capable of working a job that does not involve much interaction with others. The examiner indicated that the Veteran's last VA examination did not report any occupational problems. At an October 2010 VA examination, the examiner opined that the Veteran's knee and peripheral neuropathy limited his ability to work because the Veteran would have difficulty with labor intensive work requiring repetitive bending, squatting, prolonged standing, and walking. The examiner noted that the Veteran could perform sedentary jobs. At a March 2013 VA gastroesophageal reflux disorder (GERD) examination, the examiner opined that the Veteran's GERD with mild esophagitis and dysphagia, heartburn, reflux, shoulder pain, and sleep disturbance did impact his ability to work. On March and April 2015 Social Security Administration disability reports, the Veteran was found to be able to lift and carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk for six hours a day. The examiners found that the Veteran's ability to push and/or pull (including the operation of hand and/or foot controls) was unlimited, other than for the lift and/or carry limitation. The examiners noted that the Veteran could climb ramps and stairs, ladders, ropes, scaffolds, occasionally and balance frequently and stoop, kneel, crouch and crawl occasionally. On a January 2015 Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that he had three years of a college education. The Veteran noted that he worked for Computek as a consultant from August 2008 to December 2008, as an intelligence analyst for the Army from October 2003 to November 2006, and as an I.T. manager in May 2008. The Veteran indicated that he had additional training in science and history. At a February 2015 VA examination, the Veteran reported that he experienced pulsating or throbbing head pain, localized to the right side of his head, with nausea, sensitivity to light and sound, and vision changes as a result of his migraines. The examiner opined that the Veteran's migraines impacted his ability to work by limiting him to a flexible schedule and loose supervisor. At a February 2015 VA Back examination, the examiner opined that the Veteran's thoracolumbar spine condition, lumbosacral sprain and degenerative arthritis of the spine, limited his ability to work that was mostly sedentary with the ability to frequently change position and that had no requirement for frequent or heavy lifting or frequent bending. At a February 2015 VA PTSD examination, the Veteran reported attending school full time, two days a week, three classes (one is online). The Veteran noted that he was pursuing a bachelor's degree in history. The Veteran indicated that he missed classes due to migraines and struggles keeping up with homework. At a September 2017 Board hearing, the Veteran testified that his PTSD impacted his ability to work. The Veteran noted that he got angry and exploded at work and that he had been previously discharged because of his anger issues, anxiety and migraines. The Veteran indicated that he had an attendance problem at work because he was unable to sleep. He reported that his last employment was as Computek in 2008 and that he was let go after three months. The Veteran noted that he got into an argument with a supervisor over a customer and that was the last straw as he had been missing work due to his migraines. He indicated that any changes in policy or procedure at work caused him to get very angry and upset. He reported that he had a part-time job in 2012 with the Veterans Resource Center and that he was let go after about ten weeks. The Veteran indicated that he kept having problems and flaring up and that campus security escorted him off campus. The Veteran noted that he was calling in sick about once or twice a week as a result of his migraines. The Veteran indicated that his migraines impacted his ability to work because he would miss at least half a day of work three times a week. He testified that his PTSD impacted his ability to work because he had rituals such as checking locks and doors and he would get angry and blow up at supervisors and coworkers. He indicated that he would not be able to work in a more relaxed atmosphere like self-employment and without interacting with other people because his knees, back, and migraines would prevent him from showing up to work. He noted that he had an associate's degree in science and was removed from VA's vocational rehabilitation program. VA vocational rehabilitation and employment records were added to the claims file, documenting his course work at Portland State University and inventory assessment testing. In a December 2017 letter, D.G., Dean of Student Life, Portland State University, stated that during the Veteran's time as a student during the Fall 2012 through Spring 2016, he worked with the Dean of Student Life, specifically the C.A.R.E. program to help address barriers to his academic success in reference to his PTSD diagnosis. C. Analysis The Veteran has been awarded service connection for migraine headaches, rated at 50 percent disabling; PTSD, rated at 50 percent disabling; lumbar spine strain with degenerative disc disease, rated at 20 percent disabling; left shoulder rotator cuff, rated at 20 percent disabling; tinnitus, rated at 10 percent disabling; GERD, rated at 10 percent disabling; disc displacement, right temporomandibular joint, rated at 10 percent disabling; and left knee status post medial meniscectomy, rated at 10 percent disabling; right lower extremity sciatic associated with lumbar spine strain with degenerative disc disease, rated at 10 percent disabling; hiatal hernia, rated at 10 percent disabling; right knee stain, rated at zero percent disabling; left leg post-surgical scar, rated at zero percent disabling; and saphenous nerve damage, rated at zero percent disabling. Without consideration of the increased rating for PTSD granted herein, the Veteran's combined rating for all of his service-connected disabilities is 70 percent from December 21, 2007 and 90 percent from November 19, 2009, exclusive of a temporary total convalescent rating from October 19, 2010 to April 30, 20011. Thus, his service-connected disabilities meet the schedular criteria for assignment of a TDIU. 38 C.F.R. § 4.16(a). The remaining consideration is whether the Veteran's service-connected disabilities precluded him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage") for the period on appeal. See Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board finds that the weight of the evidence of record shows that the Veteran's service-connected disabilities did not prevent him from securing and following all forms of substantially gainful employment consistent with his work and educational background. The weight of the medical evidence shows that the service-connected disabilities precluded heavy physical or strenuous manual labor but did not preclude sedentary work. Initially, the Board notes that the Veteran has three years of a college education and he reported his post-service work as a consultant for Computek and as an I.T. manager. The weight of the evidence shows that the service-connected disabilities, in combination, precluded substantially gainful employment consistent with the Veteran's education and occupational experience from December 25, 2008, but not prior to that date. In late 2008, he worked for two to three months in the field of information technology and was let go on December 24, 2008, due to an argument with a supervisor . He also worked earlier in 2008 as an information technology manager and was terminated due to PTSD anger. He has testified as to his difficulty with anger issues and attendance problems. He tried to work part-time at a college at a veterans resource center in 2012. The medical records and testimony/statements have discussed the Veteran's physical limitations due to service-connected disabilities. His vocational treatment records reflect some course work which resulted in failing grades. Migraine headaches have also resulted in periods of incapacitation. Considering the evidence as a whole, the Board has determined that as of December 25, 2008, the day following the Veteran's termination of full-time employment, he is shown to be unable to engage in substantially gainful employment due to service-connected disabilities. Prior to this date, he was working 40 plus hours per week for a period of at least two to three months, as well as for an unspecified period earlier in the year, 40 plus hours per week. The Board has resolved reasonable doubt in the Veteran's favor. ORDER Entitlement to an initial 50 percent rating, but no higher, for PTSD, is granted, subject to controlling regulations applicable to the payment of monetary benefits. An effective date prior to September 3, 2009, for the award of a 10 percent schedular evaluation for left knee status post partial medial meniscectomy and posterior cruciate ligament reconstruction is denied. Entitlement to a TDIU is granted from December 25, 2008, but not prior to that date, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs