Citation Nr: 20026048 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 17-02 542 DATE: April 15, 2020 ORDER The petition to reopen the previously-denied claim for service connection for a cervical spine disorder is dismissed. Entitlement to service connection for left bundle branch block, claimed as a heart disorder, angina, arrhythmia and chest pain, is dismissed. Entitlement to service connection for hemorrhoids is dismissed. Entitlement to a rating in excess of 70 percent from April 6, 2015, for service-connected posttraumatic stress disorder with depressive disorder (PTSD) is dismissed. Entitlement to an initial rating in excess of 20 percent for service-connected low back strain, residuals anterior wedge compression fracture, L1 with degenerative arthritis (lumbar spine disability) is dismissed. Entitlement to an initial rating in excess of 10 percent prior to August 21, 2018, and in excess of 20 percent thereafter, for service-connected radiculopathy of the left lower extremity is dismissed. Entitlement to an initial rating in excess of 10 percent for service-connected chondromalacia patella with painful motion during flexion, left knee, (left knee disability) is dismissed. Entitlement to an initial rating in excess of 10 percent for service-connected chondromalacia with painful motion during flexion of the right knee (right knee disability) is dismissed. Entitlement to a rating in excess of 10 percent from November 19, 2018, for service-connected right ankle strain is dismissed. Entitlement to a rating in excess of 10 percent from November 19, 2018, for service-connected left ankle strain is dismissed. Entitlement to an effective date earlier than September 19, 2014, for the award of service connection for radiculopathy of the left lower extremity is dismissed. Entitlement to an effective date earlier than July 21, 2015, for the award of service connection for traumatic brain injury (TBI) is dismissed. Entitlement to an initial 10 percent disability rating for service-connected left ankle sprain is granted, effective June 3, 2005, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial 10 percent disability rating for service-connected right ankle sprain is granted, effective June 3, 2005, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a 70 percent disability rating for service-connected PTSD is granted, effective March 12, 2012, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, effective March 12, 2012, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to an initial compensable rating for service-connected TBI injury is remand. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. Entitlement to a TDIU due to service-connected disabilities prior to March 12, 2012, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) (2019), is remanded. FINDINGS OF FACT 1. In December 2019 statements, the Veteran and his attorney indicated that he was withdrawing from appeal the following issues: whether new and material evidence had been received to reopen the previously-denied claim for service connection for a cervical spine disorder; entitlement to service connection for left bundle branch block, claimed as a heart disorder, angina, arrhythmia and chest pain; entitlement to service connection for hemorrhoids; entitlement to a rating in excess of 70 percent from April 6, 2015, for service-connected PTSD; entitlement to an initial rating in excess of 20 percent for service-connected lumbar spine disability; entitlement to an initial rating in excess of 10 percent prior to August 21, 2018, and in excess of 20 percent thereafter, for service-connected radiculopathy of the left lower extremity; entitlement to an initial rating in excess of 10 percent for service-connected left knee disability; entitlement to an initial rating in excess of 10 percent for service-connected right knee disability; entitlement to a rating in excess of 10 percent from November 19, 2018, for service-connected right ankle strain; entitlement to a rating in excess of 10 percent from November 19, 2018, for service-connected left ankle strain; entitlement to an effective date earlier than September 19, 2014, for the award of service connection for radiculopathy of the left lower extremity; and entitlement to an effective date earlier than July 21, 2015, for the award of service connection for TBI. 2. Resolving all reasonable doubt in the Veteran’s favor, since June 3, 2005, the Veteran’s service-connected bilateral ankle disabilities have been manifested by complaints of painful motion and functional impairment 3. Resolving all reasonable doubt in the Veteran’s favor, since March 12, 2012, his service-connected PTSD was manifested by occupational and social impairment with deficiencies in most areas throughout the appeal period. 4. From March 12, 2012, through April 5, 2015, the Veteran’s had one service-connected disability rated as 70 percent disabling, and his combined disability rating was 90 percent disabling. 5. Resolving all reasonable doubt in the Veteran’s favor, he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, effective March 12, 2012. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of whether new and material evidence had been received to reopen the previously-denied claim for service connection for a cervical spine disorder are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 19.55 (2019). 2. The criteria for withdrawal of the issue of entitlement to service connection for left bundle branch block, claimed as a heart disorder, angina, arrhythmia and chest pain are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the issue of entitlement to service connection for hemorrhoids are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the issue of entitlement to a rating in excess of 70 percent from April 6, 2015, for service-connected PTSD are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the issue of entitlement to an initial rating in excess of 20 percent for service-connected lumbar spine disability are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 6. The criteria for withdrawal of the issue of entitlement to an initial rating in excess of 10 percent prior to August 21, 2018, and in excess of 20 percent thereafter, for service-connected radiculopathy of the left lower extremity are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 7. The criteria for withdrawal of the issue of entitlement to an initial rating in excess of 10 percent for service-connected left knee disability are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 8. The criteria for withdrawal of the issue of entitlement to an initial rating in excess of 10 percent for service-connected right knee disability are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 9. The criteria for withdrawal of the issue of entitlement to a rating in excess of 10 percent from November 19, 2018, for service-connected right ankle strain are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 10. The criteria for withdrawal of the issue of entitlement to a rating in excess of 10 percent from November 19, 2018, for service-connected left ankle strain are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 11. The criteria for withdrawal of the issue of entitlement to an effective date earlier than September 19, 2014, for the award of service connection for radiculopathy of the left lower extremity are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 12. The criteria for withdrawal of the issue of entitlement to an effective date earlier than July 21, 2015, for the award of service connection for TBI are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 13. The criteria for an initial 10 percent disability rating for service-connected left ankle sprain have been met, effective June 3, 2005. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2019). 14. The criteria for an initial 10 percent disability rating for service-connected right ankle sprain are met, effective June 3, 2005. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 15. The criteria for a 70 percent disability rating for service-connected PTSD are met, effective March 12, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2019). 16. The criteria for an award of a TDIU are met, effective March 12, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2002 to June 2005. I. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In a December 2019 signed statement, the Veteran stated that he intended to withdraw from appeal the following issues: whether new and material evidence had been received to reopen the previously-denied claim for service connection for a cervical spine disorder; entitlement to service connection for left bundle branch block, claimed as a heart disorder, angina, arrhythmia and chest pain; entitlement to service connection for hemorrhoids; entitlement to a rating in excess of 70 percent from April 6, 2015, for service-connected PTSD; entitlement to an initial rating in excess of 20 percent for service-connected lumbar spine disability; entitlement to an initial rating in excess of 10 percent prior to August 21, 2018, and in excess of 20 percent thereafter, for service-connected radiculopathy of the left lower extremity; entitlement to an initial rating in excess of 10 percent for service-connected left knee disability; entitlement to an initial rating in excess of 10 percent for service-connected right knee disability; entitlement to a rating in excess of 10 percent from November 19, 2018, for service-connected right ankle strain; entitlement to a rating in excess of 10 percent from November 19, 2018, for service-connected left ankle strain; entitlement to an effective date earlier than September 19, 2014, for the award of service connection for radiculopathy of the left lower extremity; and entitlement to an effective date earlier than July 21, 2015, for the award of service connection for TBI. His intention was also confirmed by his attorney in a separate December 2019 statement. Because the Veteran has withdrawn this appeal as to these issues, there remains no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the above-stated issues, and they are dismissed. II. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). A. Ankles Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. By way of background, the Veteran filed a claim for service connection for his bilateral ankles in February 2006, less than a year following his June 2005 discharge from active duty. In an August 2006 rating decision, the agency of original jurisdiction (AOJ) denied his claims. The Veteran filed a petition to reopen his previously-denied claims for service connection in July 2015. A February 2016 rating decision granted service connection for a right ankle sprain and awarded a noncompensable rating, effective July 21, 2015. It also continued to deny the Veteran’s claim for service connection for a left ankle disorder. In the November 2016 rating decision on appeal, the AOJ determined that the August 2006 rating decision committed clear and unmistakable errors when it denied the Veteran’s claims for service connection for bilateral ankle disorders. As such, the AOJ granted service connection for the Veteran’s bilateral ankle sprains and assigned noncompensable ratings, effective June 3, 2005, the day after he was discharged from active duty. The Veteran initiated an appeal as to the assigned initial ratings. In a February 2019 rating decision, during the pendency of the appeal, the AOJ awarded separate 10 percent disability ratings for the Veteran’s service-connected bilateral ankle sprains, effective November 19, 2018, under Diagnostic Code 5271. 38 C.F.R. § 4.71a. The Veteran and his attorney have specifically argued for and requested that initial 10 percent disability ratings be assigned to his service-connected bilateral ankle sprains prior to November 18, 2018. See December 2019 Appellate Brief. Although a claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, such a claimant may “limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law” via “clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition.” See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (citing Hamilton v. Brown, 4 Vet. App. 528, 544 (1993)). Accordingly, based on the statements of the Veteran through his attorney, the Board finds that the issues on appeal are limited whether initial 10 percent disability may be assigned to his service-connected bilateral ankle sprains at any point prior to November 19, 2018. Under Diagnostic Code 5271 limitation of motion of an ankle warrants a 10 percent rating when moderate, and 20 percent when marked. 38 C.F.R. § 4.71a. Full dorsiflexion is to 20 degrees and full plantar flexion is to 45 degrees. See id., Plate II. The Board observes that the words “moderate” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. In his initial claim for service connection, received in February 2006, the Veteran noted that his ankles worsened during service and, although he sought medical treatment, he continued to have problems. The Veteran indicated that his ankles were “always unsure.” During a June 2010 VA examination, the Veteran reported bilateral ankle pain. A February 2013 VA treatment record reflects the Veteran’s report of pain in the anterior aspect of his left ankle. The treatment provider noted that there was tenderness in the anterior tibial tendon, that movement of the ankle was very painful on the tendon, and that there was swelling and inflammation. A July 2015 private treatment record notes the Veteran’s report of pain that affected his entire body that was aggravated by activity and improved with rest. The treatment provider noted that he had mild arthralgia of the bilateral ankles. Similar findings were noted in a November 2015 private treatment record. In a September 2015 statement, the Veteran report that he broke his ankles several times during service, and that his ligaments were problematic. A July and November 2015 private treatment records note the Veteran’s report of mild arthralgias in his bilateral ankles. A January 2016 VA examination report noted the Veteran’s report of bilateral ankle pain dating back to 2004. He stated that he continued to experience intermittent bilateral ankle pain that worsened with activity and was relieved with rest. The Veteran denied flare-ups, but he stated that he tried not to overdo things. Range of motion testing revealed dorsiflexion from zero to 20 degrees bilaterally, and plantar flexion from zero to 45 degrees bilaterally, and pain was not noted during range of motion testing. There was no pain with weight bearing or localized tenderness or pain on palpation. Following repetitive use, his range of motion stayed the same. There was no evidence of ankylosis or joint instability. As for the functional impairment associated with the Veteran’s service-connected bilateral ankle sprains, the examiner indicated that he would have difficulty involving a high degree of mobility and physical activity or repetitively going up and down stairs. A March 2016 private treatment record noted the Veteran’s report of left foot and ankle swelling that began one month prior. A September 2017 private treatment record noted the Veteran’s report of a mild arthralgia in his left ankle. For the entire period on appeal, the Veteran has consistently reported experiencing bilateral ankle pain, and the Board finds no reason to call into question his observations. As noted above, painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Thus, the Board finds that effective June 3, 2005, the Veteran is entitled to initial 10 percent disability ratings for his service-connected bilateral ankle disabilities on that basis. To the extent that such painful motion must be objectively confirmed, the Board finds that the February 2013 VA treatment provider notation of tenderness in the anterior tibial tendon, painful movement, and swelling and inflammation; as well as the July 2015 private treatment record notation of mild arthralgia of the bilateral ankles are sufficient to confirm that which the Veteran has reported throughout the appeal period. See Petitti v. McDonald, 27 Vet. App. 415 (2015). Based on the Veteran’s arguments and contentions, see December 2019 Appellate Brief, the Board finds that the assignment of initial 10 percent disability ratings for his service-connected bilateral ankle sprains, effective June 3, 2005, represents a full grant of the benefits sought on appeal with respect to the initial rating assigned to his service-connected bilateral ankle sprains. B. PTSD By way of background, the Veteran’s claim for an increased rating for his service-connected PTSD was received on September 19, 2014. In a January 2015 rating decision, the AOJ assigned a 50 percent disability rating under Diagnostic Code 9411 to the Veteran’s service-connected PTSD, effective September 19, 2014. In a November 2016 rating decision, the AOJ awarded a 50 percent disability rating under Diagnostic Code 9411, effective March 12, 2012. The AOJ also awarded a 70 percent disability rating under Diagnostic Code 9411 to the Veteran’s service-connected PTSD, effective April 6, 2015. As noted above, the Veteran has withdrawn his appeal as to the issue of entitlement to a rating in excess of 70 percent from April 6, 2015, for service-connected PTSD. Furthermore, the Veteran and his attorney have specifically argued for and requested that a 70 percent disability rating under Diagnostic Code 9411 be assigned for the period from March 12, 2012, through April 5, 2015. See December 2019 Appellate Brief. Although a claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, such a claimant may “limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law” via “clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition.” See A.B., supra. Accordingly, based on the statements of the Veteran through his attorney, the Board finds that the issue on appeal is limited to whether a 70 percent disability rating is warranted for the Veteran’s service-connected PTSD from March 12, 2012, through April 5, 2015. PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the formula, a 70 percent rating is warranted where there is 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; 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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has embraced the Mauerhan Court’s interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Ultimately in Mauerhan, the United States Court of Appeals for Veterans Claims upheld the Board’s decision noting that the Board had considered all of the veteran’s psychiatric symptoms, whether listed in the rating criteria or not, and had assigned a rating based on the level of occupational and social impairment. Mauerhan, supra at 444. In Vasquez-Claudio v. Shinseki, F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit also held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. The Federal Circuit further held that, in assessing whether a particular disability rating is warranted requires a two-part analysis, including (1) an initial assessment of the symptoms displayed by the veteran and, if they are of the kind enumerated in the regulation and (2) an assessment of whether those symptoms result in the occupational and social impairment contemplated by that particular rating. See id. at 118. Indeed, considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2019). A March 2012 VA treatment record noted the Veteran’s report that he could get nasty three to four times a week, and that he was numb to the world. His mood was never really up. He stated that his anxiety tended to be up. When confronted by a situation were a lot of people would be around, the Veteran indicated that he would either leave or not attend in the first place. He also reported panic attacks and fluctuating motivation. His described chronic sleep problems, including trouble falling and staying asleep. He was also critical of himself and had excessive guilt. His concentration varied, and he reported problems with memory. He denied feeling hopeless or helpless, but he became sad more easily and tended to work. He reported increased irritability but noted that his violent tendencies had decreased as a result of his social isolation. He also reported days when he wished he was not around, but he did not have thoughts of killing himself. He did report homicidal thoughts, but he denied any plan or intent. He stated that he lived alone, and that he did not talk with anyone in depth. Another March 2012 VA treatment record noted the Veteran’s report of “moderate” amount of repeated disturbing memories, thoughts, or images of his traumatic experience; a moderate amount of repeated disturbing dreams; “a little bit” of suddenly acting or feeling as though he were reliving his traumatic experience; “quite a bit” of feeling very upset when reminded of the traumatic experience; “quite a bit” of physical reactions to reminders of his traumatic experience; an extreme amount of avoiding thinking or talking about his traumatic experience, or avoiding feelings associated with such; an extreme amount of avoiding activities associated with his traumatic experience; “quite a bit” of trouble remembering important parts of his traumatic experience; “quite a bit” of a loss of interest in enjoyable activities; “quite a bit” of feeling distant or cut off from others; an extreme amount of feeling emotionally numb or being unable to have loving feelings for those close to him; a moderate amount of trouble falling or staying asleep; “quite a bit” of feelings of irritability and angry outbursts; “quite a bit” of difficulty concentrating; a moderate amount or being super-alert or on guard; and “a little bit” of feeling jumpy or easily startled. An April 2012 VA treatment record noted the Veteran’s report of anger when driving due to hospitality. He also reported discomfort and being on guard if someone looked at him/stared for a very long time. He viewed this as threatening. He was also reportedly very uncomfortable if his family tried to hug him, and he had problems being around people that were overexcited. His moods were described as “flat line” as much as possible, but it fluctuated. A May 2012 VA treatment record noted the Veteran’s report of problems handling his irritability. He stated that he wished in many ways that he would have been killed during service as opposed to coming home and dealing with his mental health problems. He stated that he was still working on controlling and delaying his response to people so that he did not respond in anger. He also reported being petrified of places that were too small or overcrowded, and that he experienced significant anxiety when he was in such a place. A June 2012 VA treatment record notes the Veteran’s report of being unable to attend a baseball game with his family. He stated that, for the upcoming Independence Day, he was going to stay inside his house and turn up the television because the sound and visual display of fireworks work activate his PTSD symptoms. He indicated that he was looking forward to starting college, and he was hoping that he would be comfortable enough to attend classes. The Veteran reported ongoing problems with sleep disturbances. He also noted that he stayed in bed to hide from the world. A July 2012 private neuropsychological evaluation noted that the Veteran’s affect tended to be flat, but he showed appropriate variability in emotion. He reported significant discomfort in situations where he was in the presence of other people, noting that crowds could be problematic. At these times, he would feel tense, on edge, irritable, and critical. He stated that he was able to refrain from overt verbal or physical acting out, and that he experienced greater control than he did a year prior. Nevertheless, he minimized activities outside of his home in order to avoid activating his emotions. The examiner noted that issues with arousal sensitivity, irritability, and interpersonal avoidance continued to be a problem. The Veteran reported problems driving long distances. The Veteran stated that he was living with his girlfriend and her two daughters in what he indicated was a positive situation. He noted that there were times when he would get tense and would have to leave the situation. He reported episodes of tearfulness triggered by emotional stimuli. The examiner noted the Veteran’s report that he was unemployed due to his psychiatric issues, but that he was taking distance learning courses. The examiner noted that testing revealed a very emotionally impoverished, unhappy, and empty existence with little pleasure or satisfaction in day-to-day life. Pessimism and general demoralization were readily expressed. As for the occupational impairment associated with the Veteran’s service-connected PTSD, the examiner concluded that the Veteran’s psychological condition, in conjunction with his ongoing back pain issues, rendered him unemployable. His need for predictability and structure, his difficulty of interacting with other people on an ongoing basis, and his significant resistance and antagonism toward control and confrontation by other would make it highly likely that he would be unable to sustain employment in the competitive workplace even if the activities were within his cognitive and experiential abilities. A May 2013 private psychiatric assessment noted that, following his military service, the Veteran began to experience the following symptoms: daily rage and associated actions, such as wrecking cars and destroying property; near-constant dysphoria; feeling emotionally numb to the world; engaging in avoidance behaviors, such as avoiding people, traffic, and eye contact due to rage impulses; panic attacks; frequent intrusive recollections, both during the day and at night in the form of nightmares; an inability to picture a future for himself; and being jumpy and easily startled, leading to an inability to relax at home. He expressed feelings of guilt, anhedonia, sadness, anger, poor concentration, and memory problems. The treatment provider noted that the veteran stayed at home most of the time to avoid rage episodes. Upon examination, he was casually and appropriately dressed and groomed. He was cooperative, and his affect was consistently angry throughout. The examiner noted an impression of a man who was on the edge of aggressive action that could amount to a fight to the death. His mood was angry to sad, and he became tearful once or twice. His thought content was marked by ankle and violent themes alongside themes of terror and anxiety. Morbid thinking was ubiquitous, but he denied suicidal ideation. The examiner noted that he displayed a pattern of avoiding parts of life that may trigger powerful emotional reactions and destructive behaviors. After reviewing the Veteran’s post-service treatment records, the examiner diagnosed him with PTSD, chronic; and major depression, severe without psychotic features. The examiner then noted that the Veteran could tolerate only come social situations for a limited time before a period of isolation in his house was required. The examiner continued that social situations must be known and controllable for him to tolerate them. He must put considerable effort into behavioral and emotional control. Even so, he was noted to experience frequent outbursts of rage and weeping, and he had no close friends except for his girlfriend. Because of his deep distrust and his tendency to explode when confronted, in addition to his bodily pain, the examiner concluded that the Veteran had been unable to tolerate work settings since 2009. Later, the examiner noted that the Veteran was severely limited in his ability to work outside of his home. Furthermore, the examiner noted that, even in a setting that was routine, controlled, and nonconfrontational, there was nothing in his history that would suggest an ability to function eight hours a day, five days a week due to his emotion and pain conditions. Although the Veteran had been successful with some online classes, the examiner concluded that any position in the current work environment was not possible, even if it were within his intellectual grasp. A December 2014 private neuropsychological evaluation completed by the same clinical that drafted the July 2012 evaluation noted that the Veteran’s general demeanor was somewhat more positive and outgoing than it was in 2012, but that his affect was still subdued, and he demonstrated some nervous laughter. He expressed some positive feelings and he was cooperative. Despite his modest improvement in his general social comfort level, he tended to remain home much of the time. He was trying to get out more with other individuals, but he still avoided crowds and felt uncomfortable when someone in a crowd bumps into him. He stated that he was less globally angry toward all racial and ethnic groups. He stated that his marriage was positive. He was taking online courses and some classroom courses, and he was able to tolerate the social interaction with small and familiar groups, although he still felt tense and uncomfortable. The Veteran was also reportedly looking for employment, although previous interviews and applications did not materialize. The examiner noted that the general pattern of psychological testing continued to indicate high levels of emotion, cognitive, and physical symptoms, and that his level of symptom endorsement had steadily declined based on testing conducted in 2011 and 2012, indicating a modest improvement. Nevertheless, the Veteran still viewed himself as anxious, emotionally, impoverished, unhappy, and irritable/angry most of the time. Despite the fact that the examiner concluded that the Veteran had made important progress, and he continued to expect progress, he nevertheless concluded that the Veteran’s psychological condition, in conjunction with his ongoing back pain issues, rendered him unemployable. His need for predictability and structure, his difficulty of interacting with other people on an ongoing basis, and his significant resistance and antagonism toward control and confrontation by other would make it highly likely that he would be unable to sustain employment in the competitive workplace even if the activities were within his cognitive and experiential abilities. In January 2015, the Veteran underwent a VA examination. The Veteran reported that he was married in 2014. He then stated that he had been going to school off and on, and that he recently had been offered a part-time job at a bank that he planned to take. Concerning the PTSD diagnostic criteria, the examiner noted recurrent, involuntary, and intrusive distressing memories; recurrent distressing dreams; dissociative reactions; intense or prolonged psychological distress at exposure to internal or external cues; and marked physiological reactions to internal or external cues. He avoided or tried to avoid distressing memories, thoughts, or feelings. He experienced persistent, distorted cognitions about the cause or consequences of his in-service stressor that led him to blame himself or others; a persistent negative emotional state; markedly diminished interest or participation in significant activities; and feelings of detachment or estrangement from others. He displayed irritable behavior and angry outbursts; hypervigilance; an exaggerated startle response; problems with concentration; and sleep disturbances. These symptoms were found to cause a clinically significant distress or impairment in social, occupational, or other important areas of functioning. Other symptoms included depressed mood; anxiety, panic attacks more than once a week; chronic sleep impairment; and disturbances of motivation and mood. The examiner noted that the Veteran was alert and oriented, and that his mood was normal. His attention and concentration were intact; his speech was normal; his thought process was logical and sequential; his memory was intact; his intelligence was average; and his judgment and insight were fair. He denied delusions, but he did report some hallucinations, including hearing explosions from time to time and seeing things when driving. The Veteran also reported thoughts of wishing things were better or that he were not around, but not to the point of self-harm. He stated that, 90 percent of the time, he wished he was not around, and he felt a little bit of guilt having survived his in-service experiences. The examiner concluded that, based on the Veteran’s functional ability noted during the examination report, he would likely be able to work in a slower-paced job. Based on the above evidence, and after resolving all reasonable doubt in the Veteran’s favor, the Board concludes that the evidence of record demonstrates that the symptomatology associated his service-connected PTSD more nearly approximated occupational and social impairment in most areas since March 12, 2012, warranting the assignment of an initial 70 percent disability rating for the period from March 12, 2012, to April 5, 2015. Overall, since March 12, 2012, the Board finds that the Veteran’s service-connected PTSD has been manifested by symptoms such as the following: emotional numbing; anxiety and panic attacks more than once per week; chronic sleep problems, including trouble falling and staying asleep, and nightmares; feelings of guilt and self-criticism; irritability and angry outbursts; hypervigilance; an exaggerated startle response; problems with concentration; depressed mood; intrusive memories; intense or prolonged psychological distress and marked physiological distress; markedly diminished interest or participation in significant activities; avoidance behaviors and feelings of detachment or estrangement; homicidal thoughts; Collectively, the Board finds that these symptoms are of the type, extent, severity, and/or frequency that more nearly approximate occupational and social impairment in most areas of the Veteran’s life. The Board finds that while these symptoms were not always present together, they were of sufficient persistence to result in occupational and social impairment with deficiencies in most areas for the period from March 12, 2012, to April 5, 2015, to support a 70 percent disability rating. In assessing the severity of the Veteran’s service-connected PTSD, the Board has considered the competent lay assertions regarding the symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994). Based on the Veteran’s arguments and contentions, see December 2019 Appellate Brief, the Board finds that the assignment of a 70 percent disability rating for the period from March 12, 2012, to April 5, 2015, represents a full grant of the benefits sought on appeal with respect to the rating assigned to the Veteran’s service-connected PTSD. III. TDIU Total disability ratings for compensation may be assigned, in circumstances where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). The Veteran’s formal claim for a TDIU was received on July 21, 2015. However, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), because his claim was raised in connection with claims for increased ratings for his service-connected disabilities, and because the appeal period for some of those disabilities (such as his bilateral ankles) stretch back to the day after he was discharged from active duty, the question before the Board is whether the Veteran is entitled to a TDIU from June 3, 2005, to the present. In a November 2016 rating decision, the AOJ granted the Veteran’s claim for a TDIU, effective April 6, 2015. The Veteran and his attorney have specifically argued for and requested that a TDIU be assigned from December 10, 2009. See December 2019 Appellate Brief. As will be explained below, the Board finds that entitlement to a TDIU is warranted for the period from March 12, 2012. Insofar as the Veteran seeks a TDIU prior to that date, such will be addressed in the remand below. With regard to the period from March 12, 2012, through April 5, 2015, the Veteran was awarded service connection for the following disabilities: PTSD, rated as 70 percent disabling; lumbar spine disability, rated as 20 percent disabling; left knee disability, rated as 10 percent disabling; right knee disability, rated as 10 percent disabling; left ankle strain, rated as 10 percent disabling; and right ankle strain rated as 10 percent disabling. During that period, the Veteran was also awarded service connection for radiculopathy of the left lower extremity, effective September 19, 2014. His overall combined disability rating for the period from March 12, 2012, through April 5, 2015, was 90 percent when considering the bilateral factor. See 38 C.F.R. § 4.26 (2019). Therefore, the Board finds that the Veteran has met the schedular criteria for a TDIU, effective March 12, 2012, and the remaining inquiry is whether he was unable to secure or follow substantially gainful employment due solely to his service-connected disabilities at any point from March 12, 2012. 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 be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2006); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Initially, the Board acknowledges that the Veteran has been awarded Social Security Administration (SSA) disability benefits due to his service-connected PTSD, effective September 2009. However, the mere fact that the SSA has deemed him unemployable does not dictate the outcome in this matter; although they are relevant and to be considered, SSA disability determinations are not binding on VA. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). The Board incorporates by reference all of the evidence discussed above in connection with the Veteran’s claim for an increased rating for his service-connected PTSD. Based on that evidence, and after resolving all reasonable doubt in the Veteran’s favor, the Board finds that the functional impairment associated with his service-connected disabilities, including his service-connected PTSD and lumbar spine, rendered him unemployable as of March 12, 2012, and that entitlement to a TDIU is warranted from that day. As noted above, the July 2012 neuropsychological evaluation noted that the Veteran’s need for predictability and structure, his difficulty of interacting with other people on an ongoing basis, and his significant resistance and antagonism toward control and confrontation by other would make it highly likely that he would be unable to sustain employment in the competitive workplace even if the activities were within his cognitive and experiential abilities. The examiner concluded that his psychological condition, in conjunction with his ongoing back pain issues, rendered him unemployable. The same examiner reiterated those conclusions in December 2014. In the May 2013 psychiatric assessment, the examiner concluded that, because of his deep distrust and his tendency to explode when confronted, in addition to his bodily pain, the Veteran had been unable to tolerate work settings since 2009. Later, the examiner noted that he was severely limited in his ability to work outside of his home, and that even in a setting that was routine, controlled, and nonconfrontational, there was nothing in his history that would suggest an ability to function eight hours a day, five days a week due to his emotion and pain conditions. Furthermore, as noted above, the SSA has determined that the Veteran has been unable to work since 2009. In view of the foregoing, the Board finds that entitlement to a TDIU is warranted, effective March 12, 2012, the day the Veteran met the schedular criteria for a TDIU. The Board has considered the benefit-of-the-doubt rule in granting this benefit. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial compensable rating for service-connected TBI is remanded. In November 2016, the Veteran underwent a VA examination in connection with his claim for service connection for a TBI. The VA examiner noted that the Veteran suffered several mild TBIs during his military service, but that he did not have any residuals at the present. Subsequently, in a December 2019 appellate brief, the Veteran’s attorney argued that he suffered from residuals of a TBI including an impairment in communication. Citing the Veteran’s VA treatment records, VA examination reports, a December 2019 psychiatric evaluation, and lay statements of record, the attorney argued that he experienced near daily episodes of incoherent speech and frequent difficulty comprehending written language. Furthermore, the attorney argued that the Veteran experienced headaches that were frequently prostrating and resulted in prolonged attacks productive of severe economic inadaptability. Given the attorney’s argument, as well as the evidence cited, the Board finds that a current examination is needed to fully and fairly evaluate any residuals associated with the Veteran’s service-connected TBI. See Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to SMC based on the need for aid and attendance is remanded. The Veteran claims that his service-connected disabilities, both physical and psychiatric, have severely limited his ability to function independently, and that he is forced to rely on his wife for assistance in completely activities of daily living. Thus, he argues that he is entitled to SMC based on the need for the aid and attendance of another. In a December 2019 psychiatric assessment, Dr. M.C. concluded that, due to the complex symptomatology associated with the Veteran’s service-connected PTSD, his physical disabilities, and his progressive TBI residuals, his wife functioned as his caregiver and helped him attend to basic day-to-day needs, such as reminding him to bathe, managing his medication, assisting him with walking, helping him communication, and driving him to appointments. As noted above, the residuals associated with the Veteran’s service-connected TBI have not been evaluated since January 2016, and the evidence of record indicates that those residuals may have worsened. Given this, as well as the Veteran’s contentions in connection with his claim for SMC, the Board finds that, on remand, the Veteran should be scheduled for a VA aid and attendance examination to determine whether the functional impairment associated with his service-connected disabilities cause him to be so helpless as to be in need of regular aid and attendance of another. 3. Entitlement to a TDIU due to service-connected disabilities prior to March 12, 2012, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), is remanded. As a result of the Board’s decision above, the Veteran is currently in receipt of a TDIU as of March 12, 2012. As noted above, the Veteran and his attorney have specifically argued for and requested that a TDIU be assigned from December 10, 2009. See December 2019 Appellate Brief. With regard to the period from December 10, 2009, through March 11, 2012, the Veteran was awarded service connection for the following disabilities: PTSD, rated as 30 percent disabling; lumbar spine disability, rated as 20 percent disabling; left knee disability, rated as 10 percent disabling; right knee disability, rated as 10 percent disabling; left ankle strain, rated as 10 percent disabling; and right ankle strain rated as 10 percent disabling. His overall combined disability rating for the period was 60 percent, even when considering the bilateral factor. See 38 C.F.R. § 4.26. Even if the Board were to consider the Veteran’s lumbar spine, right and left knee, and right and left ankle disabilities as one disability (as they affect a single body system), to include the bilateral factor, they combine to 40 percent. Under 38 C.F.R. § 4.25, a 40 percent rating combines with the 30 percent for PTSD to 60 percent. Therefore, despite the Veteran’s attorney’s contention, see December 2019 Appellate Brief, at no point prior to March 12, 2012, did the Veteran meet the minimum schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), which establishes that a schedular TDIU may be awarded if the Veteran has a single service-connected disability rated at 60 percent, or if more than one disability is present, one is rated at 40 percent, with a combined 70 percent rating. Nevertheless, a total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Here, while the Veteran did not meet the schedular criteria prior to March 12, 2012, the evidence of record suggests that he may have been unable to secure or follow substantially gainful employment during that period due to his service-connected disabilities. As noted in the decision above, the May 2013 private psychiatric assessment concluded that, because of his deep distrust and his tendency to explode when confronted, in addition to his bodily pain, the Veteran had been unable to tolerate work settings since 2009. Furthermore, as noted above, the SSA determined that the Veteran was disabled as a result of his service-connected PTSD as of September 2009. Finally, the December 2019 psychiatric assessment also concluded that the Veteran was unable to obtain and maintain substantially gainful employment since September 2009 due to his service-connected disabilities. It is the established policy of VA 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. Therefore, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). The Board acknowledges the Veteran’s attorney’s request that the Board grant an extraschedular TDIU without first referring the matter to the Director of Compensation Services. However, the Board does not have the authority to assign an extraschedular TDIU in the first instance. See Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that “the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU”); Bowling v. Principi, 15 Vet. App. 1 (2001). Based on the discussion above, the Board finds that the Veteran’s claim for a TDIU prior to March 12, 2012, should be submitted to the Director, Compensation Service, for a determination as to whether a TDIU should be awarded on an extraschedular basis. The matters are REMANDED for the following action: 1. Associate any VA treatment records dated after February 22, 2019, with the Veteran’s claims file. 2. Give the Veteran the opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if he provides the appropriate authorization. 3. The Veteran should be afforded a VA examination(s) by an appropriate medical professional to determine the current nature and severity of his service-connected TBI. The entire claims file must be made available to, and reviewed by the examiner, and the examination report should include discussion of the Veteran’s pertinent health history and assertions. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran’s service-connected TBI. In doing so, the examiner must also complete any indicated examination that addresses any identified residuals, including (but not limited to) headaches, including migraine headaches. In addressing such inquiries, the examiner should take into consideration all of the evidence of record, to include medical records as well as the Veteran’s lay statements, accepted medical principles, and objective medical findings. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 4. The Veteran should be afforded a VA Aid & Attendance examination by an appropriate medical professional. The entire claims file must be made available to, and reviewed by the examiner, and the examination report should include discussion of the Veteran’s pertinent health history and assertions. Any indicated evaluations, studies, and tests should be conducted. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 5. Refer the Veteran’s claim for a TDIU prior to March 12, 2012, to the Director, Compensation Service, for consideration of assignment of an extra-schedular TDIU under the provisions of 38 C.F.R. § 4.16(b). 6. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.