Citation Nr: 1808964 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 10-11 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for PTSD prior to January 25, 2009 and in excess of 70 percent thereafter for accrued benefits or substitution purposes. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for accrued benefits or substitution purposes. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran completed active duty service with the United States Navy from June 1965 to August 1968. He is a recipient of the Vietnam Service Medal with one Bronze Star and his personnel records indicate he was authorized to receive the Combat Action Ribbon. The Veteran died in May 2016. The Appellant is his surviving spouse. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In October 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Thereafter, the appeal was remanded for additional claim development in February 2013. After the appeal returned to the Board for further adjudication, the issue of entitlement to a higher initial rating for service-connected PTSD was adjudicated in an April 2016 Board decision; the Board remanded entitlement to service connection for a spine condition and chronic skin disorder. In its April 2016 decision the Board partially granted the Veteran's PTSD claim, assigning a 50 percent rating to the appeal period prior to January 25, 2009. Subsequently the Veteran appealed the Veteran's April 2016 partial grant decision to the United States Court of Appeals for Veterans Claims (Court). However, the Veteran died away in May 2016, and the Court granted the Appellant's motion to substitute for the Veteran as the Appellant; the Appellant is the Veteran's surviving spouse. In May 2017, VA's Office of General Counsel and the Appellant's attorney submitted a Joint Motion for Partial Remand (JMR), which was granted by the Court in March 2017, and the issue of entitlement to a higher initial rating in excess of 50 percent prior to January 25, 2009 and to a rating in excess of 70 percent thereafter was remanded to the Board. Thereafter, the Appellant's attorney affirmatively raised the issue of entitlement to a TDIU. The Appellant's attorney then filed several requests for extension and produced additional evidence and argument in support of the Appellant's claims. Although the Agency of Original Jurisdiction (AOJ) did not certify the issue of TDIU as part of this appeal, the Appellant's attorney has raised the issue. Therefore, the Board has jurisdiction to consider the issue of entitlement to a TDIU as part of his claim for an increased initial rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Finally, the Board notes that the Appellant filed an application to substitute for the Veteran in pursuit of his service connection claims for his spine and skin that were remanded by the Board to the RO in April 2016. As the RO just recently confirmed that the Appellant meets the basic eligibility requirements to substitute for the Veteran in pursuit of those claims, and it appears that the RO is still completing claim development, the matters of entitlement to service connection for a spine condition and skin condition will not be adjudicated by the Board at this time. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's PTSD was manifested by symptoms which most closely equate occupational and social impairment with deficiencies in most areas. 2. There is sufficient probative evidence of record that the Veteran's service-connected disabilities rendered him unable to secure or maintain a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a rating of 70 percent, but not higher, for the Veteran's service-connected PTSD have been met for accrued benefits or substitution purposes. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5121A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125, 4.130 (2017). 2. The criteria for entitlement to a TDIU have been met for accrued benefits or substitution purposes. 38 U.S.C. § 1155, 5107. 5121A (2012); 38 C.F.R. § 3.102, 3.159, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist A. Initial Rating for PTSD As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in November 2008. See Dingess v Nicholson, 19 Vet. App. 473, 490-91 (2006). The RO issued an SOC in February 2010 that advised the Veteran of the pertinent laws and regulations and the reasons for the decision. As to the duty to assist, the record indicates that the RO obtained all information relevant to the Appellant's claim. The Veteran's service treatment records have been obtained, as well as post-service VA and private treatment records. Significantly, neither the Appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded VA examinations in January 2009 and May 2013. When VA undertakes to provide a VA examination or obtain a VA examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has been afforded adequate examinations. The examiners reviewed the treatment records and medical history and conducted a complete examination which fully addressed the symptoms and manifestations of PTSD. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). As discussed above, the Board previously remanded this matter for additional development in February 2013. The development ordered in the remand included affording the Veteran VA examinations, obtaining VA treatment records and obtaining records from the Social Security Administration. A review of the records reveals that the requested development has been completed in compliance with the February 2013 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, as noted, the Veteran was afforded a Board hearing in October 2011. Overall, the hearing was legally sufficient and the duty to assist has been met. 38 U.S.C. § 5103A (2012); Bryant v. Shinseki, 23 Vet. App. 488 (2010). II. Entitlement to a Higher Initial Rating for PTSD Where the Veteran challenges the initial rating of a disability for which he has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. §5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). Accordingly, after careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. See id. Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran's disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as "pyramiding" is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Additionally, consistent with the benefit-of-the-doubt principle, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Moreover, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). As stated above the Veteran's PTSD is currently evaluated at 50 percent disabling prior to January 25, 2009 and at 70 percent thereafter pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation requires occupational and social impairment "with reduced reliability and productivity due to such symptoms as": (1) flattened affect; (2) circumstantial, circumlocutory, or stereotyped speech; (3) panic attacks more than once a week; (4) difficulty in understanding complex commands; (5) impairment of short-and long-term memory as demonstrated by retention of only highly learned material or forgetting to complete tasks; (6) impaired judgment; (7) impaired abstract thinking; (8) disturbances of motivation and mood; and (9), difficulty in establishing and maintaining effective work and social relationships. Id.; 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A 70 percent rating is warranted when 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": (1) suicidal ideation; (2) obsessional rituals which interfere with routine activities; (3) speech intermittently illogical, obscure, or irrelevant; (4) near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; (5) impaired impulse control, such as unprovoked irritability with periods of violence; (6) spatial disorientation; (7) neglect of personal appearance and hygiene; (8) difficulty in adapting to stressful circumstances, including work or a work like setting; (9) and inability to establish and maintain effective relationships. Id. Finally, a 100 percent rating is warranted when there is evidence of total occupational and social impairment "due to such symptoms as": (1) gross impairment in thought processes or communication; (2) persistent delusions or hallucinations; (3) grossly inappropriate behavior; (4) persistent danger of hurting self or others; (5) intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; (6) disorientation as to time or place; and (7) memory loss for names of close relatives, own occupation, or own name. Id. A 100 percent rating is warranted when there is evidence of "total occupational and social impairment due to such symptoms as": (1) gross impairment in thought processes or communication; (2) persistent delusions or hallucinations; (3) grossly inappropriate behavior; (4) persistent danger of hurting self or others; (5) intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; (6) disorientation as to time or place; and (7) memory loss for names of close relatives, own occupation, or own name. Id. The above listed symptoms associated with the 50, 70, and 100 percent ratings are not an exhaustive list of symptoms the Veteran must have or must exhibit; rather they are examples of symptoms that could cause the level of occupational and social impairment contemplated by each rating level. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). As such, the Board need not find all or even some of the listed symptoms to assign any of the above ratings. Id. Instead, the Board must examine the symptoms of the Veteran, determine whether they are of the kind that are enumerated in the disability rating level, and if so, determine whether those symptoms result in the level of occupational and social impairment described by that rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). In doing so the Board may examine the severity, frequency, and duration of the Veteran's symptoms, and determine the similarity they bear to the specific rating levels listed in 38 C.F.R. § 4.130. See id. The Board notes that the current version of 38 C.F.R. § 4.125 (2017), utilizes the Diagnostic and Statistical Manual of Mental Disorders, (5th ed. 2013) (DSM-V) to diagnose and assess mental health disorders. However, previously, including at the time the Veteran's claim was filed and VA examinations procured, VA utilized the Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV). Accordingly, diagnoses made in VA examinations and VA mental health treatment records often include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score consistent with the DSM-IV. A GAF rating is a scale reflecting the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental-health illness, with higher scores reflecting a greater degree of psychological, social and occupational functioning than lower scores. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV). An examiner's classification of the level of psychiatric impairment through assignment of a GAF score or otherwise, must be considered, but is not in and of itself determinative of the rating level to be assigned to the mental health disorder at issue. VAOPGCPREC 10-95. Therefore, the extent that the Veteran has been assigned a GAF, the Board will consider this evidence. A. Evidence and Analysis March 2006 private treatment records from Cornerstone Psychological indicate that the Veteran reported feeling depressed for several months. At the March 2006 psychiatric evaluation the Veteran reported feeling as if he could cry at just about anything, noting that he had recently become upset and started crying during a dog food commercial, as they had reminded him of German Shepard dogs that had been given to the army to guard perimeters. The Veteran reported an increase in depression on and off over the course of the preceding 10 years. He reported that he awakened three to six times a night and that he had fewer nightmares than he had previously but still had them. He reported feeling numbness in response to the death of an uncle with whom he was close. He also reported avoiding asking a friend of his to write a letter about their service together in the Republic of Vietnam, and reported jumpiness and hypervigilance. He reported irritability and a temper mostly with those that were close to him, but also that this had improved over the years. He stated that he did not feel he had anxiety at work, and that he prioritized family before work. He reported issues with concentration and memory, such as turning in an assignment at work and then not remembering it when asked about it. He reported flashbacks. The Veteran discussed his relationship with his parents, describing abuse from his mother when he was young, and noting a close relationship with his father, who had stayed around without intervening; both parents were deceased. The Veteran reported that he had no history of psychiatric hospitalizations or suicide attempts. The Veteran reported that he was previously a fairly heavy alcohol drinker during service and during the first few years of his marriage. He reported that he had been married to his wife for 33 years and that she was his best friend, and that he was close to his adult children and five grandchildren. He reported that he had been employed as a welding engineer at the same company for the preceding 3 years. He also reported attending community college, teaching at community college, and attending electrical school in Virginia, as well as doing some broadcasting work as a disc jockey. Mental status examination noted that the Veteran was casually groomed and dressed. He was pleasant and cooperative. His affect was restricted. The Veteran denied suicidal or homicidal ideation. He reported problems with concentration and memory. He denied psychosis and manic symptoms. His judgment and insight were good. A psychiatrist diagnosed PTSD and assigned a GAF score of 65. May 2007 VA treatment records reflect that the Veteran described his relationship with his wife as his greatest asset. He also described his work history as including over 41 jobs over the course of his lifetime. He explained that he had nightmares several times a month and avoided movies and other media that acted as triggers for intrusive thoughts of war, and reported that he slept only four or five hours a night. He reported recent difficulty maintaining a job due to his current health issues. He described his wife as his strength for coping. A May 2008 treatment record indicates that the Veteran reported an improvement in depression symptoms with pain management for his chronic pain issues, but that his depression earlier in the year had been much worse. The Veteran indicated that he continued to sleep in a recliner chair and that he had two the three nightmares in the past week. The Veteran's Zoloft prescription was increased, with the treating nurse specialist noting residual depressive symptoms over the course of several months related to life stressors. A Social Security Administration disability examination dated in August 2007 reflects that the Veteran reported that his mood was "not bad and pretty good." He reported that he did not think he had suicidal thoughts but did have nervousness. He sometimes felt shaky and had tightness in his chest with no known cause. The Veteran reported that he had nightmares almost every night and only slept about four hours a night. He reported that he had been very forgetful for the past six months. He reported that his longest job was for 10 years as an inspector at a testing lab and that at his recent job he fell and was injured a couple times at his last job, and that he was let go from that job after a period of not working due to his last injury. The Veteran reported that he did not really know why he got fired but he assumed that the company thought he was a liability. The Veteran reported that his injuries from the fall had healed but that his current medical problem, ankylosing spondylitis, was unrelated, and had been diagnosed 10 years prior. The Veteran reported seeing a psychiatrist in the early 1970s due to crying spells and feeling a little suicidal. As for activities of daily living, he reported doing some dishes and helping his wife with laundry, as well as operating a self-propelled mower, which he used with several breaks. He reported watching television and loving to read. The examiner assigned the Veteran a GAF of 55. A March 2008 treatment record notes that the Veteran and his wife attended a therapy session. It is noted that the Veteran's issues impacted his marriage. The Veteran's wife reported that the Veteran had spent most of his life being alternatively angry or sad for apparently no reason. She explained that about five years ago she had told the Veteran that if things did not change she would leave. The examining psychologist noted that the Veteran was cooperative. The Veteran was well-organized in his thinking and had appropriate expression with a good range of affect. The Veteran was in good contact with reality and was well-oriented. The Veteran reported that he was let go from a position as a welding engineer in February 2007 after he fell and was injured. A GAF score of 55 was assigned. The Veteran had a VA examination in January 2009. The Veteran reported persistent sleep difficulties, anger outbursts, hypervigilance, and startle response. He reported that he experienced six panic attacks a month but was able to calm himself when these occurred. On mental status examination, the Veteran was well-oriented and appropriately groomed. He presented with a full range of affect, though his mood was mildly depressed or mildly anxious at times depending on the content shared. His thoughts were generally logical. His speech was of a normal rate and volume. There were no obvious deficits with cognition or memory. He denied current suicidal ideation. He denied auditory or visual hallucinations. The examiner noted that the Veteran was responsible for maintaining his activities of daily living and appeared to do so appropriately. The examiner noted that significantly distressing symptoms continued to persist, including significantly impaired sleep, daily intrusive thoughts, recurrent anger outbursts and multiple panic attacks a month. The examiner assigned a GAF score of 60. The Veteran reported the following vocational history at his January 2009 VA examination. The Veteran attended broadcasting school and worked as a disc jockey at various locations moving frequently for the next five years. He then worked at shipyards after marrying in 1972 and continued working there until 1978. After this, the Veteran got a job teaching welding at the Airco Technical Institute in Cleveland and held this job for a year and a half; however, the Veteran reported that this job was located in a dangerous neighborhood and that the Veteran had a gun pulled on him. The Veteran returned to shipyards in 1980 working as a welder until they closed in 1983, then procured a job as lead inspector at a satellite lab in Cleveland from 1984 to 1989, and then led another company's welding lab from 1989 to 1993. In 1993, the veteran and three of his coworkers left the lab to start their own lab; the Veteran did this for the next five years until his back pain became so disabling that he could not work and his partners bought out his stake in the business. Following this, the Veteran returned to teaching welding at a community college, returned to work as a welding engineer from 2002 to 2007 and then his back problems led him to retiring for good. The Veteran also reported that he used to get in fights when he would drink but that he ceased social drinking in the mid-1980s under threat from his wife that she would divorce him if he did not stop getting into fights. In February 2009 the Veteran reported to his VA treatment providers that he had not been reporting the full extent of his symptoms. The Veteran noted that he had not discussed his romantic relationships prior to his marriage, and previous jobs he had had, explaining that he had a work history of over 50 jobs and that the job he held the longest lasted 9 years and was a supervisory job in a testing lab. He also explained that he had fleeting episodes of depression accompanied by thoughts of suicide, and that he had his wife had more marital strain that he had otherwise been reporting. He explained that his wife had trouble understanding and coping with his PTSD and often would not talk to him or answer his questions for periods of time. He reported his fleeting suicidal thoughts were not accompanied by intent or plan. In September 2009 the Veteran reported having one bad day where he thought about suicide but indicated that he was able to talk himself through it, and reported no suicidal thoughts in a while. In a February 2010 VA psychiatry treatment record the Veteran reported he had deep discussions with other Veterans in his PTSD group about times when they had previously felt suicidal, and that he had more to live for in his life now, including seeing his grandchildren grow up and becoming a great grandfather. The Veteran submitted a lay statement that was received in March 2010. In his lay statement he reported that he had sometimes had six jobs a year and that he had trouble with authority which he described as not being able to put up with BS. He stated that sometimes his wife would send him to work at one place and he would come home from work from a different job, but did not provide further context, or assign a particular time period to his job fluctuation. He also reported that he got into many fights over the years, citing a traffic incident in which he was cut off by another driver and broke several of his bones, reporting that so far as his wife knows, "that was the last time he fought." However, he explained that he continued to have issues with road rage and bureaucracy. He stated that he had had issues in his relationships and that he hardly spoke with his sisters anymore. He reported that although he had a lot of acquaintances, the only people he would call friends were those with whom he served in Vietnam, and two additional people, one of whom was a retired Marine. The Veteran did not report any workplace physical altercations. A June 2011 VA treatment record indicates that the Veteran reported having anger issues due to road rage as he had no other outlet. He also reported being "in a slump," feeling that there was nothing left for him to do, and that he fought falling asleep to avoid nightmares. At his October 2011 Board hearing, the Veteran reported that his PTSD had worsened. As to specific symptoms, he stated that he was jumpy and startled easily at noise. He also reported that he sometimes woke up on the floor in the middle of the night; he also felt that his PTSD was worse than the level of severity contemplated by his rating that was assigned after his 2009 VA examination, which, at that time was a 30 percent rating. The Veteran stated that the 2009 VA examination report noted that he had always worked but did not reflect that he had over 50 jobs before he had to go on disability retirement with Social Security. The Veteran reported a history of getting fired for fighting, stating that he had some real authority issues, but then clarified that if he thought a boss was smug or trying to be something maybe he was not, he would let his boss know about it and turn around and walk out. The Veteran reported that he used to get in physical fights with other people and recounted an occasion on which he had gotten in a physical confrontation and came home to wake up his wife to help him find his glasses in an alley at 3 AM in the morning. He reported one incident where a guy had cut him off and then he and the other driver badmouthed each other and then got into a physical altercation and he beat the man pretty badly. He broke the man's jaw, knocked his teeth out, broke his nose, and broke some of his ribs. At that time she started that if he ever fought anyone again she would divorce him. The Veteran reported that this particular incident occurred in 1982 or 1983. However he stated that he had fights since that time, and that he" dropped" a guy from blocking his view of a shelf in a drugstore. He did not indicate when this particular incident occurred. He also did not report getting into any specific physical confrontations at his workplace, and it unclear if he was referring to verbal or physical altercations when he stated he had sometimes gotten fired for fighting in the past. He also reported that he had been married a long time but that this fact was a tribute to his wife, not him. The Veteran added that he loved his wife but that they fight all the time, and that he is not sure how she has put up with him all these years. He reported that he blew up at her over small things and that sometimes he had to get out of the house to avoid hitting her, so he went out for long drives out in the country. The Veteran stated that he changed jobs a lot because he had an attitude and a problem with authority figures. He reported that if someone was trying to pressure him he would not hold back verbally or physically. The Veteran explained that he felt that being trained to fight had carried over into his personal life, but did not contribute his attitude to his PTSD; rather he felt that it was a cause of his PTSD. Other symptoms reported by the Veteran include sitting with his back to the door, being jumpy during lightning storms, and only being able to sleep for 3 hours uninterrupted before waking up with nightmares or being awoken by a noise, such as a summer rainstorm, and not being able to fall back asleep. 2011 and 2012 VA treatment records document ongoing marital communication issues, including angry or sarcastic outbursts by the Veteran. However, the Veteran was noted to have good social support and to be close to his wife, adult children, and young grandchildren, although he did express frustration with family members with regard to babysitting and other requests, such as attending his grandchildren's softball games, when he would rather stay home. He reported being able to control his anger in front of his grandchildren, and was encouraged to expand managing his anger to other situations. The Veteran periodically reported alternating periods of getting along well with his wife and reconnecting and marital turbulence. The Veteran continuously participated in PTSD group therapy during this time. In a statement submitted in January 2012, the Veteran's wife noted that the Veteran had problems controlling his temper. She noted that he had exhibited road rage and gotten into fights, including a fist fight with a driver of another car after he was cut off in which he beat a man very badly and would not stop despite her pleading with him. After this incident she threatened to divorce him if it ever happened again. She stated that although the Veteran no longer got into physical fights, he still had outbursts of rage, and recounted an incident where he started yelling at one of the lifeguards while they were at the local pool with their grandchildren. She stated that although the Veteran had always been able to work and find work in his profession but that he has had over 50 jobs and that ever since she had known him he had had issues with authority figures, and that whenever he did not like something his boss said, he would quit and get another job. She reported that she was told by family members that he did not act this way prior to his active duty service in Vietnam. She also described the Veteran as having mood swings, tantrums, depression, nightmares, in addition to "quirks" such as not being able to sit in a restaurant with his back to a door or window, and startling with loud noises, almost punching her in the middle of the night on one occasion because she sneezed. At a VA examination in May 2013, the Veteran reported moderate to serious difficulty with depression and anxiety. He reported serious difficulty with irritability and poor tolerance. He reported that he was socially withdrawn and had few friends. He was able to attend to activities of daily living, hygiene and appearance but was periodically neglectful due to poor motivation and apathy. The examination noted moderate difficulty with restricted affect. There were frequent passive suicidal thoughts and periods of hopelessness, but the Veteran denied active suicidal or homicidal ideation. The Veteran reported a history of frequent physical fighting but denied recent assaults or violence. The Veteran reported chronic hypervigilance, periodic panic attacks and loss of friends due to irritability. The Veteran reported that he was medically retired in 2007 due to back pain. Prior to this, he reported that he used to work as a way to keep his mind busy and that he had noted an increase in symptoms following his medical retirement. He reported working full-time and taking on additional part-time work for much of his lifetime. The examiner noted that there was a reported history of quitting due to poor frustration tolerance and frequency interpersonal conflicts, with the Veteran endorsing at least 12 physical confrontations at his worksite. The Veteran's vocational history was consistent with the vocational history reported at his January 2009 VA examination report. He endorsed serious difficulties accepting supervision and serious difficulties accepting criticism while he was working. He also endorsed moderate difficulty being flexible and working in groups. He denied difficulty with productivity, reliability, and efficiency and that affirmatively stated that the quality of his work was never questioned. While teaching, he reported that he was well-liked by his students, and denied missing time from work due to mental health reasons. He also denied making frequent mistakes or having difficulties with timeliness due to concentration issues. The Veteran reported good relationships with his neighbors, recounted a recent dispute with his sister over a Facebook post, and reported that he did tours with the historical society and remained active with Disabled American Veterans and liked to play instruments. The examiner noted that the Veteran had both major depressive disorder and PTSD and that the symptoms for each overlapped with one another, stating that it would be speculative to try to differentiate which symptoms are attributable to each respective disorder. The examiner noted occupational and social impairment with reduced reliability and productivity. A GAF score of 58 was assigned. 2013 VA treatment records document that the Veteran participated in PTSD group therapy sessions with other Veterans, and a February 2013 treatment record notes that the Veteran reported increased anger at home. A vocational rehabilitation specialist, W. C., provided a posthumous assessment of the Veteran's PTSD In November 2017; a resume submitted with the vocational assessment indicates that he is a certified vocational expert. W.C. stated that he had reviewed the Veteran's claims file to prepare his vocational assessment. In his assessment, he noted that the Veteran worked as a welding engineer, a job which he describes as requiring a medium level of physical demand, then as an inspector, which he also describes as requiring a medium level of physical demand but also describes as a semi-skilled job, and as an instructor, which he notes was performed at the light level of physical demand. The fact that the Veteran had self-reported his welding inspector job as a supervisory position at his January 2009 VA examination was not discussed. Additionally, the Veteran's self-reported career advancement to lead inspector was not discussed. W. C. noted the Veteran's work history included dozens of jobs and concluded that the Veteran was unable to maintain these jobs due to his PTSD symptoms including his tendency to lash out at coworkers and other supervisors. W. C. interpreted the Veteran's Board hearing testimony as summarized above as "postulat[ing]" that the Veteran's difficulty with authority figures had led to the "inability to obtain employment." However, this vocational expert failed to note that the Veteran's October 2011 hearing testimony was primarily comprised of the Veteran explaining that he had repeatedly walked out of jobs and procure new jobs due to disagreements with supervisors and at no point during his Board hearing testimony did the Veteran state that he was unable to obtain employment due to PTSD symptoms; the Veteran did however state "sometimes I'd get fire for fighting" but did not elaborate. The vocational assessment relied on January 2009 findings and May 2013 findings summarized above included: (1) intrusive thoughts; (2) sleep impairment; (3) multiple panic attacks per month; (4) work history including impulsively quitting due to poor frustration tolerance and frequent interpersonal conflicts with coworkers and supervisors including physical confrontations; (5) markedly impaired ability to accept supervision; (6) profoundly impaired ability to accept criticism: (7) clinically significant distress in social, occupational, or other important areas of functioning; and (8) occupational and social impairment with reduced reliability and productivity. The vocational expert found that it was more likely than not that the Veteran was precluded from securing and following a substantially gainful occupation from 2007 to his death in 2016. An August 2017 SSA record that details the amount of earnings reported by the Veteran's employers that are subject to social security taxes and used to compute SSA benefits indicates that the Veteran worked for a fabrication company from 2002 to 2007, at a community college from 1998 to 2003, at a quality testing company from 1994 to 1998, and prior to this at a laboratory for 10 years. The Board finds that on the basis of the foregoing, affording the Veteran the benefit of the doubt, entitlement to a 70 percent rating but not higher for the entire appeal period is warranted. The Board finds that this is so due to the Veteran's reported occasional passive suicidal thoughts, angry outbursts, impaired impulse control, road rage, and poor frustration tolerance as documented by the record. When affording the Veteran the benefit of the doubt, such symptoms are consistent with occupational and social impairment with deficiencies in the Veteran's marital life, mood, relationships with other people, and judgment. In so finding, the Board has considered the next highest rating of 100 percent, but notes that there is insufficient evidence that the Veteran's PTSD symptoms has resulted in total social and occupational impairment. In this regard, the Board notes that prior to self-reported medical retirement due to ongoing back issues, the Veteran was able to maintain consistent employment with the same employer for five years, and prior to this with another employer for 9 years, during which time he reported that he had held a supervisory position. Additionally, the Veteran affirmatively reported using work as a way to keep his mind busy, and that his PTSD symptoms did not totally interfere with productivity, efficiency, or work product, and that he had some positive work relationships, with, for example, his students. As for social impairment, the Veteran consistently reported or has otherwise been noted to exhibit family engagement, in particular with his grandchildren. With regard to the Veteran's marriage, although the record documents long-standing marital difficulty due to the Veteran's angry outbursts directed towards his wife and others, the Veteran was noted to have other relationships with good social support, including his children and grandchildren, and two close friends. He also consistently reported that his wife was a large source of support for him despite his PTSD symptoms, and VA treatment records document periods in which the Veteran's marriage was doing well and that the Veteran had been engaged in working on his anger and marital issues. On the basis of the foregoing, the Board finds that the aforementioned evidence is collectively indicative of significant but not total occupational and social impairment. Accordingly, the Board finds that an award of entitlement to a rating of 70 percent but not higher for the entire appeal is warranted here. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5121A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125, 4.130 (2017). III. Entitlement to a TDIU Total disability ratings for compensation may be assigned if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2017). To be considered for assignment of a schedular TDIU the Veteran's service-connected disabilities must meet the following criteria: (1) if there is only one such disability, this disability shall be ratable at 60 percent or more; or (2) if there are two or more such disabilities, there shall 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. Id. However, to calculate whether the Veteran has a 60 percent rating or 40 percent rating for at least one disability, the following types of disabilities may be combined: (1) disabilities of one or both upper extremities, or of one or both lower extremities; (2) disabilities resulting from a common etiology or a single accident; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. Id. Such disabilities may be combined in accordance with 38 C.F.R. § 4.25, Table I. Here, the Veteran is service connected for PTSD, and as stated above, has been awarded a rating of 70 percent. He is also service-connected for tinnitus, rated at 10 percent, as well as hearing loss and deviated septum, for which he has non-compensable ratings. He therefore meets the minimum schedular eligibility requirements for TDIU entitlement. The remaining question is whether his service-connected disabilities precluded him from engaging in substantially gainful employment during the applicable appellate period. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a "living wage." Id. Notably, this inquiry must focus on whether, in light of his service-connected disorders, the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Consideration may not be given to the veteran's age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Factors to be considered in determining whether unemployability exists are the veteran's education and employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Based on the evidence summarized extensively above with regard to PTSD symptoms resulting in both occupational and social impairment, the Board finds that affording the Veteran the benefit of the doubt, there is sufficient evidence indicating that the Veteran's PTSD symptoms during the appeal period were of such a severity that he was rendered unable to secure or follow substantially gainful employment. Accordingly, as the evidence in support of and against a grant of service connection is relatively equal, affording the Veteran the benefit of the doubt, the Board finds that the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155, 5107, 5121A (2012); 38 C.F.R. § 3.102, 3.159, 3.340, 3.341, 4.16 (2017). ORDER Entitlement to an initial rating of 70 percent, but not higher for service-connected PTSD prior to January 25, 2009, for accrued benefit and substitution purposes, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an initial rating in excess of 70 percent from January 25, 2009 onward, for accrued benefit and substitution purposes, is denied. Entitlement to a TDIU, for accrued benefit and substitution purposes, is granted, subject to the law and regulations governing the payment of monetary benefits. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs