Citation Nr: 20004355 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 11-14 728 DATE: January 17, 2020 ORDER Entitlement to service connection for acid reflux, claimed as gastroesophageal reflux disease (GERD), to include as due to an undiagnosed illness, to include as due to any service-connected disability to include medications taken for treatment thereof is denied. For the appeal period prior to January 18, 2013, a rating in excess of 30 percent for the service-connected posttraumatic stress disorder (PTSD) with anxiety disorder is denied. For the appeal period from January 18, 2013, a rating of 70 percent, but no higher, for service-connected PTSD with anxiety disorder is granted. For the appeal period prior to December 26, 2018, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. For the appeal period from December 26, 2018, entitlement to a TDIU is granted. FINDINGS OF FACT 1. There is no competent evidence that the Veteran currently suffers from GERD. 2. For the appeal period prior to January 18, 2013, the Veteran’s PTSD with anxiety disorder was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. For the appeal period from January 18, 2013, the Veteran’s PTSD with anxiety disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 4. For the appeal period prior to December 26, 2018, the Veteran’s service-connected disabilities did not prevent him from securing or following a substantially gainful occupation. 5. For the appeal period from December 26, 2018, the Veteran’s service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for GERD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for a rating in excess of 30 percent for PTSD with anxiety were not met prior to January 18, 2013. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411. 3. The criteria for a rating of 70 percent, but no higher, have been met from January 18, 2013. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411. 4. The criteria for entitlement to a TDIU are not met for the appeal period prior to December 26, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 5. The criteria for entitlement to a TDIU are met for the appeal period from December 26, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of active duty for training in the United States Army from November 1987 to May 1988, and a period of active duty service from December 1990 to July 1991, to include service in Southwest Asia from January 1991 to June 1991. For his meritorious service, the Veteran was awarded (among other decorations), the Southwest Asia Service Medal. This appeal comes to the Board of Veterans’ Appeals (Board) from February 2010 and July 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In March 2016, the Veteran testified at a Travel Board hearing before a Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In November 2019, VA sent the Veteran and his representative a letter notifying them that the Veterans Law Judge who conducted the Veteran’s hearing was no longer employed by the Board and provided him with an opportunity for an additional Board hearing. The letter indicated that if he did not timely respond to the letter, the Board would assume that he did not want to appear at another hearing. The Veteran did not respond to the letter. Therefore, the Board will proceed with addressing the appeal. In a May 2016 decision, the Board, in pertinent part, dismissed the issue of a TDIU and remanded the issues of service connection for acid reflux claimed as GERD and an increased rating for PTSD with anxiety disorder. Prior to the May 2016 decision, the Veteran’s representative requested a 60-day extension in order to submit additional evidence. In July 2016, the Board vacated the May 2016 decision, leaving intact the dismissal of TDIU. In a December 2016 decision, the Board remanded the issues of service connection for acid reflux, claimed as GERD, and an increased rating for PTSD with anxiety disorder. In February 2018, the Board, in pertinent part, denied a rating in excess of 30 percent for PTSD with anxiety disorder prior to June 4, 2013, and granted a rating of 50 percent, but no higher, for PTSD with anxiety disorder from June 4, 2013. The Board also remanded the issue of service connection for acid reflux, claimed as GERD, for further development. Subsequently, the Veteran appealed the February 2018 Board decision to the Court of Appeals for Veterans Claims (the Court). In December 2018, the Court issued a Joint Motion for Partial Remand (JMPR), which vacated and remanded the part of the February 2018 Board decision that denied entitlement to ratings in excess of 30 percent for PTSD prior to June 4, 2013, and a rating in excess of 50 percent thereafter. Furthermore, although the issue of a TDIU was previously dismissed in a May 2016 Board decision, it has been raised again by the record. See March 2019 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Therefore, the issue is currently before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to service connection for acid reflux, claimed as GERD, to include as due to an undiagnosed illness, to include as due to any service-connected disability to include medications taken for treatment thereof is remanded. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing service connection on a secondary basis requires: (1) competent evidence of a current disability (for which secondary service connection is sought); (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service connection may also be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.§ 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Laypersons are competent to report objective signs of illness. A “qualifying chronic disability” for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C.§ 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i)(B). “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss. 38 C.F.R. § 3.317 (b). The Veteran claims that the onset of his GERD occurred while he was deployed on active duty in Saudi Arabia. See August 2017 C & P Exam. The main issue is whether the Veteran has a current diagnosis of GERD. The Veteran’s service treatment records are mostly silent for any signs, symptoms, diagnosis, or treatment of GERD. However, on the Veteran’s June 1991 Report of Medical History, the clinical evaluator noted that the Veteran complained of epigastric pain and frequent burping. Post-service VA treatment records show that the Veteran had a diagnosis of GERD. Further, VA treatment records show that the Veteran has been diagnosed with irritable bowel syndrome (IBS), which he has received service connection for. Symptoms of the Veteran’s IBS include vomiting, diarrhea, bloating/gas, and occasional constipation. In a June 2015 VA gastroenterology note, it was reported that the Veteran had a lot of problems with his stomach since going to Saudi Arabia. His symptoms included abdominal pain, waxing and waning in severity, nausea, and episodes of vomiting. The Veteran had an EGD in 2013, but the results were normal. The Veteran underwent a colonoscopy in 2014, which was significant for diverticulosis and adenomatous colon polyp, which was removed. In June 2013, the Veteran had a VA examination for esophageal conditions. The VA examiner opined that it was at least as likely as not that the Veteran’s complaint of GERD was not related to the Gulf War. The VA examiner explained that the Veteran’s disability pattern was not an undiagnosed illness; not a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology; and NOT a diagnosable chronic multisymptom illness with a partially explained etiology. The Veteran’s disability is a disease with a clear and specific etiology and diagnosis. There was no evidence of chronicity of GERD in the service treatment records and no continuity of care for GERD in the years proximal to military service. In July 2015, the Veteran had another VA examination for esophageal conditions. The VA examiner diagnosed the Veteran with GERD as of July 2013. A VA examination was performed for the Veteran in August 2017. The VA examiner opined that that the Veteran’s GERD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that the Veteran’s medical records were silent for chronic esophageal disease (GERD) complaints, pathology, diagnosis, and management during military service. The Veteran’s medical records for chronic GERD and management were silent proximate to military service. The Veteran’s esophageal pathology was a condition with a clear and specific etiology and diagnosis. It was not an undiagnosed illness or a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology. It was not a diagnosable chronic multisymptom illness with a partially explained etiology. In June 2018, a clarifying VA addendum opinion was rendered. The VA examiner noted that he reviewed the Veteran’s medical records. There was no documentation/additional information related to chronic GERD disease during active duty. Post discharge medical records were silent for chronic GERD proximate to military service. The VA examiner explained that to date, the Veteran had GI studies performed. The Veteran had a colonoscopy, which revealed diverticulosis and benign colon polyps in 2014 and was normal in 2016. The Veteran had an EGD in 2013. The Veteran had abdominal pain, nausea and vomiting, prompting HIDA Scan, which was remarkable for biliary dyskinesia. Then, the Veteran underwent laparoscopic cholecystectomy in September 2017 with resolution of nausea and vomiting, albeit still with period abdominal discomfort followed-up by his gastroenterologist. In March 2019, another VA addendum opinion was provided. The VA examiner opined that GERD was less likely as not related to service or proximately due to or aggravated by his service-connected disabilities or medications utilized for treatments thereof. She opined that although the GI symptoms reported had been generally referred to as GERD, the Veteran did not have GERD. The 2015 VA examination documented a 2014 EGD that showed no evidence of GERD, but instead, showed inflammation which indicated a diagnosis of gastritis. The VA explained that she reviewed the March 2013 EGD, which the findings were completely normal. She could not locate an abnormal EGD in the record. She further opined that the Veteran’s gastritis was at least as likely as not secondary to the Veteran’s service-connected PTSD with anxiety disorder, to include panic attacks, anxiety, depression, easy agitation, paranoia, nightmares, mood swings, concentration/memory loss, impaired judgement, chronic sleep impairment, insomnia, and night sweats. She explained that medical literature indicated anxiety as a risk factor for the development of gastritis. The symptoms reported at the time of separation from active duty were consistent with gastritis. She reviewed the March 2013 EGD, which was completely normal. She could not locate an abnormal EGD in the medical record, and she could not find the one done in 2014. In May 2019, the Veteran had a VA examination. The VA examiner reported that the Veteran had no objective evidence of a stomach condition; all objective evidence found on the examination was due to the diagnosis of GERD, which was outside of the scope of the May 2019 examination. The Veteran was treated for GERD/reflux by GI on pantoprazole. He was evaluated by GI in March 2018, which noted his pantoprazole and his past history of GERD. On that exam, he was also diagnosed with IBS. The Veteran did not have GERD. Gastritis was an inflammation of the stomach lining, which was aggravated when his GERD was not controlled. Gastritis was a symptom of GERD. The Veteran’s last EGD in 2013 was normal and did not show gastritis, which was what would be expected if the Veteran’s GERD symptoms were well controlled. PTSD, anxiety, and GERD could all lead to gastritis. The Veteran’s gastritis was currently resolved. In May 2019, the same VA examiner who authored the March 2019 VA addendum medical opinion provided another clarifying opinion. The VA examiner reported that based on the objective findings, there was not any medical evidence that found to diagnose GERD nor gastritis. The documented EGD found in the medical record did not show gastritis nor GERD. The 2015 VA examination documented a 2014 EGD that showed no evidence of GERD but showed inflammation. This indicated a diagnosis of gastritis. The VA examiner’s diagnosis of gastritis was based on professional courtesy. As stated previously in her opinion, she could not find the EGD test that showed gastritis. None of the EGDs documented showed gastritis nor GERD. The Veteran was diagnosed and treated for GERD based on his reported symptoms without confirmation by medical testing. There was no physical evidence that the Veteran had GERD based on reported symptoms. The Board assigns great probative weight and value to the May 2019 VA medical opinion that states that the Veteran did not have a current diagnosis of GERD. The VA examiner reviewed the Veteran’s claims file, to include medical history and lay statements, and the other VA examinations and opinions of record. The May 2019 VA examiner noted that the objective findings did not show that the Veteran had GERD. Furthermore, the Veteran’s March 2013 EGD was normal. She thoroughly explains her rationale for her conclusion. Furthermore, as for the Veteran’s diagnosis of GERD in the VA treatment records, this appears to be made from the Veteran’s subjective complaints of symptoms and not objective medical findings. The March 2013 EGD was normal. However, the Board acknowledges the Veteran’s lay statements of reports of GERD symptoms. The Veteran is competent to report symptoms of a disability. See Layno v. Brown, 6. Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify.”) Yet, the Veteran is not competent to diagnose a disability. Thus, the Board affords greatest weight to the May 2019 VA examiner’s opinion that the Veteran did not have GERD because the examiner is a medically trained professional and has reviewed the Veteran’s medical history. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, the Veteran’s claim of entitlement to service connection for GERD is not warranted. 2. Entitlement to a rating in excess of 30 percent prior to June 4, 2013, and in excess of 50 percent from June 4, 2013, for service-connected PTSD with anxiety disorder Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where, as here, service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, the Board will assign staged ratings for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007). Currently, the Veteran’s service-connected PTSD with anxiety disorder is rated at 30 percent prior to June 4, 2013, and 50 percent from June 4, 2013, under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this Diagnostic Code, a 30 percent is warranted where the psychiatric condition produces occupational and social impairment with occasional decrease in wok 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). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted where the psychiatric condition produces occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where the psychiatric condition produces 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 rating is warranted where the psychiatric condition results in 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. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Id. In a lay statement dated in October 2009, the Veteran’s sister-in-law related that she had witnessed the Veteran having difficulty with handling normal household business and work-related stressors. She noted abnormal sleep patterns and stated that, while she was not a doctor, she had worked with PTSD clients as a behavioral technician and she recognized many PTSD symptoms in the Veteran’s behavior. In a subsequently received statement, the Veteran’s wife indicated since she met him in 1992, the Veteran had had trouble expressing his thoughts and could become easily angered. He was nervous and anxious the majority of the time, had problems sleeping with nightmares, and stayed fatigued all the time. She stated that the Veteran only spoke of his experiences during the war on one occasion and was very uncomfortable when talking about it. A PTSD examination was conducted by VA in December 2009. At that time, the Veteran stated that he had increased symptoms of anxiety, was less tolerant of crowds, and that his concentration had worsened. He also stated that he had difficulty with interrupted sleep every night. He denied nightmares but stated that he had intrusive thoughts two to three times per week. He was easily startled, hypervigilant, and intolerant of crowds. On examination, the Veteran was alert, cooperative, and appropriately dressed. There were no lucid dissociations or flight of ideas. There were no bizarre motor movements or ticks. The Veteran’s mood was tense, but cooperative and friendly. His affect was appropriate. There was no homicidal or suicidal ideation or intent. There was no impairment of thought processes or communication. The Veteran did not have any delusions, hallucinations, ideas of reference or suspiciousness. He was oriented in three spheres. His memory of both remote and recent events was adequate. The Veteran’s insight and judgment appeared to be adequate. The diagnoses were PTSD and anxiety disorder. The anxiety disorder was believed to be related to the PTSD. He took no medication. The Veteran was anxious, and he had a short temper. He stayed pretty much to himself, but he had a few friends. He did not go to church and had limited interests. The Veteran worked full-time; his psychiatric symptoms resulted in some impairment of social function. Private treatment records dated from 2010 to 2012 show that the Veteran was treated for complaints of PTSD with insomnia. Medical records utilized in a disability determination by SSA dated in December 2013 include a mental status evaluation that showed that no psychomotor abnormalities were noted. His eye contact was good, and his speech was normal. The Veteran’s mood was “okay.” The Veteran’s affect was constricted and thought processes were linear. The Veteran denied audio or visual hallucinations as well as suicidal or homicidal ideations. His insight and judgment were fair. In February 2014, the Veteran was noted to be oriented times four, but with a euthymic mood and congruent affect. Compression was good. There was no thought distortion. The Veteran’s memory, attention, and concentration were coherent. The Veteran’s speech was euthymic. There were no psychomotor impairments, but his insight was poor to average. The Veteran denied suicidal or homicidal ideation. In a January 18, 2013 VA treatment record, it was noted that the Veteran was seen in the emergency room with complaints of depressed mood and insomnia. The Veteran reported suicidal thoughts a week ago with no plan and had not been on medications for 30 days. The Veteran denied a history of suicidal attempts. He was noted to be alert and fully oriented and cooperative. The Veteran’s mood was good; he had no psychosis. An examination was conducted by VA on June 4, 2013. At that time, the diagnoses were PTSD, anxiety disorder, and depressive disorder. The examiner noted that it was not possible to differentiate the symptoms of the three diagnoses. The Veteran’s occupational and social impairment was noted to be consistent with occupational and social impairment with reduced reliability and productivity. The Veteran’s symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, circumstantial/circumlocutory or stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. Regarding the Veteran’s social adjustment, it was reported that he had been married twice, but was not in a relationship now as his second wife had died of cancer. He reported that he avoided people and had lost interest in forming new relationships. He stated that since he had lost his job in “2011” he had few regular activities. The Veteran reported that he mainly stayed at home watching television. He stated that he did not participate in regular leisure activities. The Veteran did not have any friends; however, he occasionally texted an acquaintance when he was awake at night as a way of letting people know that he had sleep problems. Regarding employment history, he stated that he had been laid off from his job in November “2012” when the plant shut down. He stated that work had been stressful for him, which he attributed to having to interact with people. While not currently working, the Veteran stated that he was trying to find work. The Veteran reported that he had persistent sleep problems, avoided crowds, felt “paranoid” of people, avoided going out because he felt people were watching him, had irritability/felt anger much of the time, had frequent panic attacks, shortness of breath, depressed, mood, difficulty relaxing, and loss of interest in most leisure activities. Additionally, the Veteran reported to have thoughts that he would be better off dead and to have occasional thoughts of suicide. He currently denied having any plan or intent of self-harm. The Veteran was hospitalized from August 7, 2013, to August 12, 2013, for a suicide attempt. In a November 2013 private psychological questionnaire, it was noted that the Veteran had suicidal ideation and homicidal thoughts. A November 2013 VA suicide prevention risk assessment revealed that the Veteran had thought about taking his life. He thought about jumping in front of a car. He was assessed as being moderately at risk for committing suicide. In April 2016, the Veteran was afforded a private psychological evaluation by a private clinical psychologist. The private clinical psychologist reported that the Veteran had severe symptoms of PTSD. The Veteran could not concentrate, had extreme fluctuation in mood, irritability, poor memory, and poor concentration. He suffered from deficits that impaired his cognitive, occupational, and social functioning. The Veteran was unable to perform competitive work duties due only to his service-related psychiatric impairments. The Veteran was also noted to have suicidal ideation. In March 2016, the Veteran testified as to his PTSD symptoms at a Board hearing. He testified that he continued to have thoughts of suicide that occurred once or twice per week. He admitted that he had been hospitalized for suicidal thoughts. The Veteran reported that he had anger issues as well. An examination was conducted by VA in August 2017. At that time, the diagnosis was PTSD. The examiner summarized the Veteran’s level of occupational and social impairment with regard to his mental diagnosis as occupational and social impairment with reduced reliability and productivity. The Veteran reported that he currently was not married and lived alone. He had been previously married twice; however, his psychological symptoms affect the quality of his relationships. The Veteran only engaged in a few regular activities. He mainly stayed at home and watched TV. He reported that he was able to cook meals and do basis household chores, but he sometimes had low motivation to complete the tasks. Regarding his employment, the Veteran was currently working full-time as a “shift lead.” He stated that his job was to insure people were at their work stations. He stated that he did not like interacting with people or sitting in meetings. He continued to get stressed at work and stated that he vomited every day at work. The Veteran reported having been psychiatrically hospitalized in 2013 when he began “really getting treatment” for his PTSD. He reported that he contemplated suicide “about every day.” He had thoughts about running his car off the road, but he had not come up with a plan or anything. He said that he was always stressed and depressed. The examiner noted that the Veteran’s collateral medical records showed that the Veteran’s PTSD was stable and that during weekly visits he was calm, attentive, and displayed a euthymic mood. The Veteran reported continued struggles with nightmares and struggled to maintain sleep. He endorsed continued avoidance of trauma reminders, and feelings of chronic anxiety. He also endorsed fleeting periods of hopelessness as a result of suffering constant anxiety. He met the majority of the diagnostic criteria for a diagnosis of PTSD. Symptoms included anxiety, suspiciousness, chronic sleep impairment, disturbances of mood and motivation, and difficulty in adapting to stressful circumstances. He was oriented in four spheres, adequately groomed, and fully engaged. The Veteran’s mood appeared subdued, with a flat affect. His speech was clear and of normal rate and tone. Thought processes were congruent and goal directed. There was no evidence of psychosis, delusions, or perceptual disturbance. There was no active suicidal or homicidal ideation, plan, or intent. The Veteran’s judgement and insight appeared intact. In April 2019, the Veteran was afforded a VA examination for his PTSD. 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 Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work-like setting, and inability to establish and maintain effective relationships, sleep disturbance, inability to concentrate, and avoidance of social gatherings. The Veteran did not report panic attacks or impaired memory. He did not report any difficulty providing historic information with dates and had no obvious difficulty concentrating on what he was asked to complete. There was no evidence of impaired judgement or mood swings at present. In July 2019, the Veteran had a private psychological disability evaluation performed by Dr. J.I.R. through video teleconference. The Veteran’s symptoms included nervousness, anxiety/fear, sleep disturbance, concentration problems, flashbacks, crying spells, panic attacks, and loss of interest or pleasure in common activities. Dr. J.I.R. opined that the Veteran’s history and overall presentation were consistent with low to average intelligence and moderate to severe psychopathology, which was currently controlled and contained by psychoactive medications and low-stress environment. In his opinion, Dr. J.I.R. stated, the Veteran was psychologically impaired to an extent that, due to the nature and level of his psychological impairment, he should not attempt to return to the workforce and was presently incapable of sustained competitive employment. The Veteran’s overall ability to deal with the stresses of work, due to psychological factors, was moderately to markedly impaired. Any attempts in employment would be likely to result in an acute deterioration in psychological functioning. During the period since he last worked, the Veteran had been seeing a psychiatrist who prescribed the current psychotropic medication regiment. He currently was not receiving regular ongoing psychotherapy or counseling. It was likely to take more than a year to find an optimum balance of psychotropic medication regimen. The Veteran’s symptoms negatively affected his ability to perform full-time independent work in a competitive setting. The Board finds that a rating in excess of 30 percent is not warranted for the appeal period prior to January 18, 2013 (date of VA medical treatment record), and a rating of 70 percent, but no higher, is warranted for the appeal period from January 18, 2013, for the service-connected PTSD with anxiety disorder. Prior to January 18, 2013, the Veteran’s psychiatric disability was primarily manifested by symptoms of anxiety, with intolerance of crowds and worsening concentration. The Veteran also stated that he had difficulty with interrupted sleep every night, intrusive thoughts two to three times per week, startled response, and hypervigilance. He was alert, cooperative, and appropriately dressed, with no lucid dissociations or flight of ideas and no bizarre motor movements or ticks. His mood was tense, but cooperative and friendly. The Veteran’s affect was appropriate. There was no homicidal or suicidal ideation or intent, impairment of thought processes or communication, and no delusions, hallucinations, ideas of reference or suspiciousness. He was oriented in three spheres. His memory of both remote and recent events was adequate. Insight and judgment appeared to be adequate. This symptomatology is not shown to be productive of disability that causes more than occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. The Veteran’s symptoms are not of the frequency, severity or duration so as to approximate the criteria for an increased rating. As such a rating in excess of 30 percent is not shown to have been warranted for the appeal period prior to January 18, 2013. For the appeal period from January 18, 2013, the Veteran’s PTSD symptoms caused occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran’s symptoms included suicidal ideation, depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, circumstantial/circumlocutory or stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The Veteran has continuously had suicidal ideation since January 2013. The Veteran had been hospitalized for suicidal thoughts in August 2013. He had been noted to be at moderate risk for suicide. In March 2016, the Veteran testified that his suicidal thoughts occurred once or twice per week. In a private April 2016 psychological evaluation, it was reported that the Veteran had severe symptoms of PTSD. The Veteran could not concentrate, had extreme fluctuation in mood, irritability, poor memory, poor concentration, and suicidal ideation. The Veteran suffered from deficits that impaired his cognitive, occupational, and social functioning. On his August 2017 VA examination, the Veteran reported that he contemplated suicide about every day. He had thoughts about running his car off the road, but he had not come up with a plan or anything. The Veteran did not have many friends and engaged in only a few regular activities; he mainly stayed at home and watched TV. However, he did cook and do basic household chores. Thus, the Board finds that a rating of 70 percent is warranted. However, a rating of 100 percent is not warranted for the appeal period from January 18, 2013. Although the Veteran has suicidal ideation, he was not in persistent danger of hurting himself or others. The evidence does not show that the Veteran had made any attempt to injure himself or others. Also, the Veteran was able to perform activities of daily living, such as cooking and doing basic household chores. There was no evidence that the Veteran could not maintain his hygiene. Although the Veteran had anger problems, he did not exhibit grossly inappropriate behavior. He did not have delusions, hallucinations, or impaired judgement. Most importantly, the symptoms that the Veteran did display did not result in the total occupational and social impairment as required for a 100 percent rating. None of the Veteran’s VA examiners found that the Veteran’s impairment in these areas rose to that level, and the Veteran’s relationships were strained, he endorsed having friends; the record also shows that the Veteran was working during much of this period, such that total occupational impairment is not shown. Therefore, a rating of 100 percent is not warranted for the appeal period from January 18, 2013. 3. Entitlement to a TDIU. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, and that if there are two or more disabilities, at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of finding one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology, affecting one or both lower extremities or affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is also the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran is currently service-connected for the following disabilities: (1) PTSD with anxiety disorder rated at 30 percent from July 29, 2004 and 70 percent from January 18, 2013 (recently granted by the Board in this decision); (2) tension headaches associated with PTSD with anxiety disorder rated at 0 percent from July 12, 2011 and 50 percent from March 11, 2019; (3) fibromyalgia rated at 10 percent from July 12, 2011 and 40 percent from March 12, 2019; (4) IBS rated at 10 percent from January 21, 2005 and 30 from July 28, 2009; (5) residuals of stress fracture of the left hip, impairment of motion, rated at 10 percent from July 29, 2004 and 10 percent from April 23, 2019; (6) residuals of stress fracture of the left hip, limitation of extension, rated at 0 percent from March 12, 2019; (7) and residuals of stress fracture of the left hip, limitation of flexion, rated at 0 percent from March 12, 2019. The Veteran meets the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) for the appeal period from January 18, 2013; however, the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) prior to January 18, 2013. Therefore, the Board must determine whether to refer the claim for TDIU for the appeal period prior to January 18, 2013, to the Director of Compensation Service under 38 C.F.R. § 4.16(b). For all periods on appeal, the Board must determine whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. In March 2019, the Veteran submitted a VA Form 21-8940 requesting entitlement to a TDIU. Specifically, the Veteran asserted that his service-connected headaches, PTSD, GERD, residuals of left hip, and fibromyalgia prevent him from securing or following any substantially gainful occupation. The Veteran last worked full-time on December 26, 2018. His occupation was in sales. In May 2019, the Veteran’s former employer responded to a VA Form 21-4192 Request for Employment Information. His former employer reported that the Veteran performed work as a molding non-technical supervisor. The Veteran voluntarily resigned from his position on December 26, 2018. In April 2019, the Veteran had a VA examination for his PTSD. The Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including in a work or a work like setting, and inability to establish and maintain effective relationships. The VA examiner opined that the Veteran would have difficulty performing job duties that required frequent contact with co-workers and customers due to his avoidance of social gatherings and difficulty interacting with others. The Veteran had difficulty in jobs where there was close supervision from management due to his difficulty with authority. It was apparent that the Veteran had difficulty with jobs that were very stressful or required steady focus due to motivation, mood, and difficulty coping with stress. In a private a July 2019 private psychological evaluation, Dr. J.I.R. stated that the Veteran was psychologically impaired to an extent that, due to the nature and level of his psychological impairment, he should not attempt to return to the workforce and was presently incapable of sustained competitive employment. The Veteran’s overall ability to deal with the stresses of work, due to psychological factors, was moderately to markedly impaired. Any attempts in employment would be likely to result in an acute deterioration in psychological functioning. During the period since he last worked, he has been seeing a psychiatrist who prescribed the current psychotropic medication regiment. He currently was not receiving regular ongoing psychotherapy or counseling. It was likely to take more than a year to find an optimum balance of psychotropic medication regimen. The Veteran’s symptoms negative effected his ability to perform full-time independent work in a competitive setting. In May 2019, the Veteran was afforded a VA examination for his fibromyalgia. The Veteran’s current symptoms included nausea, vomiting, joint pain, muscle aches, IBS diarrhea, and stiffness. He had widespread diffuse pain over his body, stiffness, and fatigue on a daily basis. Muscle weakness, fatigue, and stiffness made it hard for the Veteran to stand for longer than 30 minutes without having to stop and rest. The VA examiner noted that IBS with diarrhea with frequent trips to the bathroom made it hard to work in a position where he would not be able to go to the bathroom quickly. In May 2019, the Veteran had a VA examination for headaches. He reported having about 3 to 4 headaches per week. He had throbbing head pain, blurred vision, sensitivity to light and sound, nausea, and vomiting. The head pain would last 1 to 2 days. The VA examiner noted that it impacted the Veteran’s ability to work in that he had to take time to sit down in a cool, dark, and quiet room until his headaches passed. The VA examiner opined that the Veteran’s headaches made it difficult for him to work in an environment with bright lights or loud noises. It would be difficult for him to perform job duties that required concentration while he had a headache. The Veteran would perform best at a job that would require him to take a break or leave early when he was experiencing a headache. The Veteran had a VA examination for residuals of a stress fracture of the left hip in May 2019. The Veteran had pain, weakness, numbness, and tingling in his left leg. He had a hard time with picking up objects from the floor. The VA examiner opined that the Veteran would have difficulty performing physical job duties that required standing on his feet for longer than 30 minutes or having to pick items up off the floor. The Veteran could perform a sedentary job if he was allowed to get up and take breaks, since his pain occurred if sitting for a long period of time. The Board finds that since the Veteran was working prior to December 26, 2018, a TDIU is not for assignment for that time. The evidence does not show that the Veteran’s employment was marginal or that he was in a protected environment. The Veteran has not shown that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Thus, referral to the Director of Compensation Service is not warranted for the period prior to January 18, 2013. However, the Board finds that a TDIU is for assignment for the period from December 26, 2018. The combined effects of the Veteran’s service-connected disabilities prevent him from maintaining substantially gainful employment. Laypersons are qualified to render probative evidence on the issue of whether a veteran can perform the physical and mental acts required by employment. The April 2019 VA examiner opined that the Veteran would have difficulty performing job duties that required frequent contact with co-workers and customers, difficulty with jobs where there was close supervision from management, and difficulty with jobs that were very stressful or required steady focus due to his PTSD symptoms. On the Veteran’s private July 2019 psychological evaluation, Dr. J.I.R. opined that the Veteran should not attempt to return to the workforce and was presently incapable of sustained competitive employment. Any attempts in employment would be likely to result in an acute deterioration in psychological functioning. The Veteran’s other service-connected disabilities, such as headaches, fibromyalgia, IBS, and left hip disabilities, would also prevent him from being employed. The Veteran’s symptoms included muscle aches, joint pain, diarrhea, headaches, and vomiting. The May 2019 VA examiner opined that the Veteran’s left hip disability would cause the Veteran to have difficulty performing physical job duties that required standing on his feet for longer than 30 minutes or having to pick items up off the floor. The Veteran’s headaches made it difficult for him to work in an environment with bright lights or loud noises. It would be difficult for him to perform job duties that required concentration while he had a headache. The combined effects of the Veteran’s service-connected disabilities would clearly prevent the Veteran from securing or following a substantially gainful occupation. Thus, for the appeal period from December 26, 2018, TDIU is granted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.