Citation Nr: 1825971 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 13-24 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) for the period prior to June 19, 2013. 2. Entitlement to a disability evaluation in excess of 50 percent for PTSD for the period after June 19, 2013. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Matthew Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970. He was awarded a Combat Infantryman Badge among his awards and decorations. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran and his spouse testified at a March 2014 videoconference hearing before the undersigned. A transcript of those proceedings is associated with the Veteran's Virtual VA file. In an April 2015 decision, the Board declined to increase the Veteran's disability ratings for PTSD. A November 2015 Court of Appeals for Veterans Claims (Court) order vacated the Board's decision, and adopted a Joint Motion for Remand (JMR) for reconsideration of the Veteran's claim. In May 2016, the Board remanded the Veteran's claim for additional evidentiary development. In a March 2017 decision, the Board again declined to increase the Veteran's disability ratings for PTSD and claim for a TDIU. An August 2017 Court order vacated the Board's decision, and adopted another JMR for reconsideration of the Veteran's claim. The matter has since been returned to the Board for further consideration. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran's symptoms of PTSD have resulted in occupational and social impairment with reduced reliability and productivity in most areas. Symptoms of total occupational and social impairment have not been demonstrated. 2. With the effect of the decision herein, the Veteran's service-connected disabilities now meet the percentage requirements for the award of a TDIU, and the evidence demonstrates that he is as likely as not unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, for the entire period on appeal, the criteria for an evaluation of 70 percent for anxiety disorder, but no higher, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.130, Diagnostic Code 9411 (2017). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2017). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice in advance of the rating decisions on appeal. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. There is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. The Veteran's statements in support of the claim are of record, including testimony provided at the hearing before the undersigned Veterans Law Judge. The Board hearing focused on the elements necessary to substantiate his claim and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. Thus, the material issues on appeal were fully developed in accordance with 38 C.F.R. § 3.103(c) (2017). There has been no indication to the contrary. Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Legal Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2015); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). While it is necessary to consider the complete medical history of the Veteran's condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Facts and Analysis The Veteran's service-connected PTSD has an initial compensable evaluation of 30 percent disabling, effective February 15, 2011, under Diagnostic Code 9411. 38 C.F.R. § 4.130. The Veteran seeks entitlement to an initial disability evaluation greater than 30 percent for his PTSD prior to June 19, 2013, and in excess of 50 percent thereafter. Diagnostic Code 9411 is included in the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 30 percent evaluation is warranted where there is 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted where the disorder is manifested by 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, for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is indicated where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. See Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In assessing the evidence of record, it is important to note that the Global Assessment of Function (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). A score of 31 to 40 is assigned where there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or 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 score of 41-50 is assigned where there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51-60 is assigned where there are 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, conflict with peers or coworkers). A score of 61-70 is indicated where there are some 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. As an initial matter, the Board notes that the Veteran has received VA treatment, some therapy, and prescription medications for his PTSD. A review of VA treatment records show that in February 2011, the Veteran requested a referral to the mental health clinic due to worsening bad dreams. In March 2011, he was described as maintaining good grooming and hygiene, and his appearance was appropriate. He reported his mood as "fine" and his affect was euthymic. His speech was clear and fluent. His thought process appeared goal directed and thought content appeared appropriate. Immediate and remote memory appeared grossly intact. The Veteran denied experiencing hallucinations or delusions, and his judgment and insight seemed fair. He was afforded a VA mental health examination in April 2011. In the examination report, the examiner indicated there was no record of mental health treatment prior to February 2011. The Veteran reported he had been married to his current spouse for 28 years and they got along well without any significant marital problems. He was able to maintain a relationship with his siblings, some friends, neighbors and belonged to a hunting club. His hobbies included hunting and completing household projects. He was able to run errands to stores but avoided crowds. The Veteran reported a willingness to go to restaurants but preferred to sit with his back to the wall due to vigilance-related anxiety. He denied substance abuse, violent or assaultive behavior, or suicidal attempts. During the mental status examination, his affect was broad and mood appeared euthymic. Hygiene and basic activities of living were adequate. There was no evidence of impaired thought processing or communication. There was also no evidence of delusions, hallucinations or panic attacks. He denied suicidal or homicidal ideation, and depression. The Veteran was oriented and his memory was intact. His speech was within normal limits. He reported mild anxiety over world events, the economy, being unemployed, and crowds. His impulse control was adequate without any severe angry outbursts. PTSD symptoms included nightmares 3 to 4 times weekly, intrusive thoughts, avoidance behaviors, hypervigilance, and hyper-startled response to loud sudden noise. He denied excessive anger or irritability and his Global Assessment of Functioning (GAF) score was 73. The examiner diagnosed him with mild PTSD. In June 2011, the Veteran had an initial psychiatric assessment at the VA mental health clinic. At the time he reported nightmares 3 to 4 times weekly with increasing severity, and being easily startled by loud noises. He denied feelings of hopelessness or helplessness, changes in appetite, or symptoms consistent with mania, panic disorder, obsessive compulsive disorder or psychosis. He noted increased anxiety since being laid off from work. During the mental status examination, he appeared well-groomed, clean and appropriately dressed. His speech was normal, his mood was reported as "doin' [sic] fine," and his affect was mood congruent. His memory was intact and thought process was linear and logical. He denied suicidal or homicidal ideation or hallucinations. His judgment and insight were good and impulse control was intact. In November 2011, the VA mental health clinic note indicated essentially the same symptomatology from June 2011 with the exception of reporting additional symptoms of nightmares, flashbacks, hypervigilance, avoidance behaviors, and poor concentration. At the February 2012 VA mental health clinic, he reported additional symptoms of no interest in day-to-day activities, and panic attacks. At this time, his affect was depressed. All other symptoms remained essentially the same. In May 2012, the Veteran indicated his nightmares had decreased in severity and he denied panic attacks. At the examination, he described his mood as anxious, although the examiner did not observe any evidence of anxiousness. All other symptoms remained essentially the same. His GAF score was 60. He attended a private psychiatric evaluation on August 13, 2012. During this evaluation, the Veteran reported nightmares and an inability to tolerate crowds, loud noises, and children. He stated he preferred to be alone and reported difficulty dealing with stress, concentrating and remembering things. He noted being irritable most of the time. As for daily activities, he reported no longer enjoying hunting, not shopping and no longer going to church. He did assist with household chores and watched some television. At the mental status examination, he was neatly and casually dressed. His affect was anxious and mood was somewhat frustrated. He was well oriented, his speech revealed frustrations, and his concentration was somewhat impaired. There was no evidence of hallucination or delusions. His GAF score was 45. On August 14, 2012, he reported nightmares 3 to 4 times a week, flashbacks, excessive startling, and excessive anxiety. He expressed feelings of intense anxiety in crowded areas and discomfort with going outside. He reported problems with concentration and interest in day-to-day activities. The Veteran denied feelings of helplessness and worthlessness. He also denied homicidal or suicidal ideation, or hallucinations. His GAF score was 62. The Veteran's treating VA psychiatrist also issued a statement in August 2012 as to the severity of his PTSD symptoms. The psychiatrist reported symptoms of 3 to 4 nightmares weekly, flashbacks, excessive startling, and excessive anxiety. She then went on to explain in detail the content of his nightmares and his anxiety episodes. The VA psychiatrist then concluded his PTSD symptoms were moderate to severe. At his October 2012 VA mental health clinic visit, he reported continuing to have nightmares. He denied problems with concentration and interest in day-to-day activities. He also denied feelings of hopelessness or worthlessness, suicidal ideation, homicidal ideation, or hallucinations. The mental status examination revealed normal speech, his mood was described as just the same and he exhibited a slightly restricted affect. He was alert and oriented and his thought process was linear, logical, and goal directed. His insight was intact and impulse control was preserved. His GAF score was 64. In January 2013, he reported additional symptoms of occasional flashbacks. He preferred staying at home and avoided crowds. He denied problems with falling or staying asleep (with the exception of nightmares which woke him up and made it difficult to fall asleep), concentrating, or interest in day-to-day activities. All other symptoms were essentially the same. As for the mental health examination, the findings remained the same, and his GAF score was 62. At a June 19, 2013 VA examination, the Veteran indicated there were no relevant changes in his social, marital and family relationship, within the past 2 years. He did note he was less interested in a social life and did not pursue social interactions. He reported still experiencing nightmares about 3 times a week and feeling anxious at times. His PTSD symptoms included anxiety, chronic sleep impairment, difficulty adapting to stressful circumstances, difficulty establishing and maintaining effective work and social relationships, and obsessional rituals that interfered with routine activities. At the time of examination, the Veteran was still retired and did not like it. His GAF score was 60. The examiner concluded he exhibited an 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. In a July 2013 VA mental health clinic note, the Veteran reported experiencing nightmares 2 to 3 times a week. He did not like to socialize and preferred to stay at home. He denied feelings of hopelessness, problems falling asleep, and problems with concentration or interest in day-to-day activities. He also denied suicidal ideation, homicidal ideation, or hallucinations. During the mental status examination, his speech was normal, mood was described as "just the same" and affect was slightly restricted. He was alert and oriented and his thought process was linear, logical and goal directed. His insight was intact and impulse control was preserved. The Veteran's GAF score was 66. The Board observes that additional treatment reports through 2013 demonstrate that the Veteran continued to suffer from nightmares, which were described as frequent and vivid. In essence, he indicated that these nightmares would haunt him on and off and throughout the following day, which also interfered with his daily functions. From October 2013 through June 2014, he reported the same symptoms from July 2013 and his mental status examination was the same. In April 2014 he indicated he was experiencing sleeping problems due to his medication. At the March 2014 hearing before the Board, the Veteran reported that he attended VA therapy every 3 months and expressed he did not feel like his medication was working. As for his PTSD symptoms, he reported nightmares ranging from 1 to 3 times weekly, not liking crowds, a preference for staying at home, increased irritability, and anxiety attacks 3 to 4 times weekly. His worst symptoms were the nightmares and being around a lot of people. He was able to go grocery shopping and kept busy with home improvement type projects. He experienced difficulty with watching television unless he was interested in the show. He also stated that he was obsessed with double checking the door locks at night. There was no difficulty with reading books and no recent suicidal thoughts. Although the Veteran was retired at the time, he reported getting along pretty well with supervisors and customers when he did work. He indicated his PTSD affected his life by preventing him from participating in social activities. His spouse was at the hearing and testified that he avoided crowds and socializing with guests. Subsequent VA treatment reports have noted that the Veteran's PTSD symptoms included nightmares, flashbacks, anxiety, and exaggerated startle response. The Veteran continued to deny suicidal or homicidal ideations, hallucinations, or symptoms of panic disorder or mania. The Veteran was cooperative and his affect was anxious at times, but his thought processes remained normal. The Veteran reported that he enjoyed household projects and watching NASCAR with his friends. The Board notes that the Veteran continued to report "I am doing about the same." As of March 2016, his GAF score was 45. The Veteran has also submitted several lay statements in support of his PTSD claim. In December 2015, he stated that he continued to have trouble sleeping, experienced panic attacks when around large crowds, and preferred to be alone. In January 2016, the Veteran's spouse stated that the Veteran suffered from nightmares, anxiety, and tended to isolate himself from others. The Board also acknowledges another private psychiatric evaluation, dated March 1, 2016. In preparing his report, the psychologist stated that he had reviewed the Veteran's claims file and had interviewed the Veteran via telephone. The private psychologist essentially summarized the Veteran's PTSD treatment which has been described above. He opined that "[the Veteran's] symptoms from his psychiatric disorder (as noted above) have been severe since at least 2011. [The Veteran's] occupational and social functioning has been adversely impacted by the above noted psychiatric symptomatology, with deficiencies in most areas." He also concluded that the Veteran's "behavioral presentation is-consistent and significant for social isolation, depression, anxiety, flashbacks, nightmares, panic attacks, insomnia, startle response, and suspiciousness / hypervigilance." In May 2016, the Veteran's treating VA psychiatrist submitted a letter at the Veteran's request. The psychiatrist stated that the Veteran: Experiences frequent anxiety attacks, daily nightmares, flashbacks 3-4 times a week, daily intrusive thoughts, exaggerated startle response, hyper vigilance, problem with crowds and significant sleep problems. These symptoms are easily triggered by exposure to loud sounds, low flying aircrafts and fireworks. These severe symptoms cause significant social and occupational impairment. In my professional opinion [the Veteran] has Post Traumatic Stress Disorder that has responded partially to aggressive treatment. His prognosis is guarded. He is totally disabled and unemployable at this time. Pursuant to the Board' prior remand, the Veteran was afforded another VA examination in July 2016. The examiner indicated a thorough review of the Veteran's claims file, including the above described private treatment reports and lay statements. The Veteran described his childhood history and reported a strong relationship with his wife of 32 years. The Veteran stated that he did not graduate high school prior to joining the military and that his post-service employment included work for a trucking company for 9 years. He later worked in the construction sales industry for 30 years until retirement in 2010. The Veteran reported fluctuating symptoms of nightmares, avoidance of crowds, isolation from others, intrusive images, hypervigilance, and periods of nervousness. He also reported minor difficulty relating to others, and sometimes felt overwhelmed or stressed. The Veteran indicated that he is no longer prescribed psychiatric medication and no longer involved in VA therapy. The Veteran denied any suicidal or homicidal ideations and gave no indication of delusional thinking. The examiner noted that the Veteran's PTSD symptoms included depressed mood, anxiety, and chronic sleep impairment. The examiner concluded that the Veteran's symptoms are characteristic of causing 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 commented that the Veteran's symptoms appear to have a minor to moderate impact on his ability to function within social and occupational settings. The examiner also acknowledged the private treatment evaluations and subsequent VA treatment reports, as well as the additional lay statements. However, the examiner explained: The claimant has and currently experiences nightmares, anxiety around others, and restless sleep. These symptoms can have an impact on his ability to function efficiently and productively within an occupational, particularly when faced with stressors. While these symptoms can affect the quality and reliability of his work and work habits, they do not directly impact his ability to perform physical and sedentary activities of employment. With regards to [the lay statements], it appears that the claimant's social difficulties and related anxiety can be categorized within a mild to moderate severity. This is based on the fact that the claimant is able [to] temporarily endure social activities initiated or preferred by his wife, but prematurely leaves these circumstances due to his discomfort and personal distress. With regards to the claimant's symptom severity and functional impairment as described in the evaluation conducted [on March 1, 2016], it is in my clinical opinion that the "severely deficient" description does not accurately represent his current level of dysfunction. Based on the current interview and provided medical evidence, it can be stated with confidence that the claimant's level of social and occupational impairment can be categorized as moderate at best, leading to occasional decrease in work efficiency and productivity with intermittent periods of inability to perform occupational tasks. As noted above, the Board ultimately denied the Veteran's appeal, and the Veteran later appealed this decision to the Court, which vacated the Board's prior decision. In support of his appeal, the Veteran submitted a January 2018 addendum report from the same private psychologist who had previously examined him in March 2016. This psychologist specifically disagreed with the conclusions of the July 2016 VA examiner, who opined that "[the Veteran's] level of social and occupational impairment can be categorized as moderate at best, leading to occasional decrease in work efficiency and productivity with intermittent periods of inability to perform occupational tasks." Instead, the private psychologist explained: Specifically, as previously noted, [the Veteran's] need to isolate, anxiety, suspiciousness, panic attacks, and startle response would make it very difficult to get along with coworkers and. supervisors. It is unrealistic and highly unlikely that [the Veteran] would be in a work setting in which his wife would be present to help him "temporarily endure social activities." It is disingenuous to offer that [the Veteran] "prematurely leaves these circumstances due to his discomfort and personal distress." [The Veteran's] long standing and deeply-rooted PTSD and subsequent symptomatology goes far beyond simply "discomfort and personal distress." I also disagree with [the prior examiner's findings that the Veteran's] symptoms "do not directly impact his ability to perform physical and sedentary activities of employment." Along with his difficulty in getting along with coworkers and supervisors, it remains my opinion that [the Veteran's] flashbacks, nightmares, and insomnia would cause daytime fatigue, making it difficult to complete work tasks in a timely and acceptable manner. This fatigue, compounded with his severe anxiety, social isolation, suspiciousness, panic attacks and exaggerated startle response leads me to stand by my original opinion that it is at least as likely as not that [the Veteran's] occupational and social impairment is severely deficient in most areas. The Board finds that the Veteran's PTSD symptoms warrant an increased initial rating of 70 percent for the entire period on appeal. However, they do not merit a rating in excess of 70 percent. Throughout the entire period on appeal, the Veteran has had problems sleeping, including frequent and vivid nightmares, which eventually interfered with many of his daily functions. The lack of sleep also caused him to suffer from panic attacks where he felt that everything was closing in on him. Additionally, he experienced anxiety and expressed a desire to isolate himself from others. The Veteran also testified as to being obsessed with checking the locks on his door at night. The Board places substantial probative value on the January 2018 addendum report from the Veteran's private psychologist. The psychologist synthesized the Veteran's medical history and provided a thorough analysis of the Veteran's symptoms throughout the entire appellate period. Notably, the psychologist disagreed with the findings of the July 2016 VA examiner, and instead reasoned that the Veteran's nightmares would cause daytime fatigue, which would compound his other symptoms and cause occupational and social impairment in most areas. The Board also finds that the Veteran has been competent and credible when reporting his symptoms during this time. In sum, the Veteran's PTSD symptoms throughout the entire period on appeal are more characteristic of a disability picture that is contemplated by a 70 percent evaluation. Neither the lay or credible medical evidence shows his symptoms meet the level required for a 100 percent evaluation. Given the totality of the evidence of record, the Board finds the Veteran's PTSD symptoms align more with an initial 70 percent disability evaluation, as the evidence more so suggests occupational and social impairment with reduced reliability and productivity in most areas. TDIU The Veteran contends that his service-connected disabilities render him unemployable and that he is therefore entitled to a TDIU. The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, and disabilities resulting from a common etiology or a single accident or disabilities affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Given the effect of the Board's decision herein to increase his initial evaluation for PTSD to 70 percent, service connection is now in effect for the following disabilities: PTSD (70 percent disabling) and tinnitus (10 percent disabling). Thus, the Veteran meets the minimum percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a). What remains to be determined is whether the Veteran's service-connected disabilities render him unemployable. For the Veteran to prevail in a claim for TDIU, the evidence must show that he is unable to pursue a substantially gainful occupation due to his service-connected disabilities. The sole fact that a Veteran 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, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). According to the Veteran's December 2015 VA Form 21-8940, his service-connected disabilities caused him to retire from the construction industry in March 2010. He reported a work history in construction sales from 1998 through March 2010. The Veteran indicated that the most he earned in one year was $97,500 in 2007. He did not report any education after high school. The Board notes that the Veteran attended several VA examinations over the course of this appeal, which have been described in the previous section. The Board further notes that the Veteran submitted a January 2018 addendum report from his private psychologist. The psychologist explained how the Veteran's PTSD and tinnitus symptoms preclude him from employment: Along with his difficulty in getting 'along with coworkers' and supervisors, it remains my opinion that [the Veteran's] flashbacks, nightmares, and insomnia would cause daytime fatigue, making it difficult to complete work tasks in a timely and acceptable manner. This fatigue, compounded with his severe anxiety, social isolation, suspiciousness, panic attacks, and exaggerated startle response leads me to stand by my original opinion that it is at least as likely as not that [the Veteran's] occupational and social impairment is severely deficient in most areas including work, thinking, judgment, and mood due to his service-connected PTSD. In light of the above, the Board finds that the cumulative effects of the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Thus, the Board finds that the evidence of record reasonably supports the grant of TDIU. Given the Veteran's limited occupational experience, along with the evidence discussed in his pertinent VA examinations, his treatment records, his statements regarding employment, and the reports from his private psychologist, the Board finds that the evidence is approximately evenly balanced as to whether the Veteran's service-connected disabilities render him unemployable under the applicable regulations. Further, no VA examiner has commented specifically on the Veteran's employability when considering the Veteran's overall disability picture. Meanwhile, the report from the Veteran's private psychologist helps shed light on this issue. As the reasonable doubt created by this approximate balance of the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In making this determination, the Board emphasizes that, in the present case, the TDIU award is based on the combined effects of the Veteran's service-connected disabilities, as opposed to any single disability alone. That is to say, the Veteran is not unemployable based on any single disability alone, but on the collective impact of all his service-connected disabilities. See Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 293 (2008). ORDER Entitlement to an initial rating of 70 percent for PTSD, but no higher, is granted for the entire period on appeal, subject to applicable laws and regulations. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to applicable laws and regulations. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs