Citation Nr: 20047547 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 19-18 136 DATE: July 16, 2020 ORDER Entitlement to an effective date earlier than November 12, 2012, is denied for the grant of service connection for post-traumatic stress disorder (PTSD). Entitlement to an initial disability rating higher than 50 percent for PTSD, prior to June 02, 2016, is denied. Entitlement to a higher than 70 percent for PTSD, beginning June 02, 2016, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. The Regional Office granted service connection for PTSD, effective November 12, 2012, the date of the request to reopen the claim for service connection for PTSD was received. 2. The Veteran’s earliest request to reopen the claim of entitlement to service connection for PTSD was received on November 12, 2012. 3. The probative evidence of record does not reflect that the Veteran’s symptoms from PTSD before June 02, 2016, manifested as occupational and social impairment in most areas. 4. The probative evidence of record does not reflect that the Veteran’s symptoms from PTSD, beginning June 02, 2016, manifested as total occupational and total social impairment. 5. The Veteran’s service-connected disabilities preclude her from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an effective date before November 12, 2012, for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 2. The criteria for an initial rating higher than 50 percent for PTSD have not been approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411. 3. The criteria for a rating higher than 70 percent for PTSD, beginning June 02, 2016, have not been approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411. 4. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 3.340, 3.341(a), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1985 to May 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2016 and December 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The April 2016 rating decision granted service connection for PTSD with an evaluation of 50 percent, effective November 12, 2012. The rating decision of December 2017 increased the disability rating to 70 percent effective, June 02, 2016. Although the Agency of Original Jurisdiction (AOJ) did not certify the issue of a TDIU as part of this appeal, the Board will consider the issue of entitlement to a TDIU as part of the claims for increased ratings. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). 1. Entitlement to an effective date earlier than November 2, 2012, for service connection for PTSD, is denied. The Veteran contends that he is entitled to an effective date earlier than November 2, 2012, for service connection for PTSD. Except as otherwise provided, the effective date of a rating and award of compensation based on an original claim, a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Before March 24, 2015, a “claim” was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p), 3.155. Any communication or action indicating an intent to apply for one or more benefits administered by VA may be considered an informal claim. 38 C.F.R. § 3.155(a). Any communication or action indicating an intent to apply for one or more benefits under laws administered by the VA, and identifying the benefits sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). The benefit sought must be identified, though it need not be specific. Servello v. Derwinski, 3 Vet. App. 196, 199 (1992); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection. Lalonde v. West, 12 Vet. App. 377 (1999); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). In January 2005, the Veteran filed a claim for PTSD, alleged as due to plane crash in service. In September 2005, the RO denied service connection based on a lack of a PTSD diagnosis. In September 2006, the Veteran provided a notice of disagreement (NOD), without any new evidence, challenging the findings of the September 2005 rating decision. The RO in an October 2006 notified the Veteran of what she needed to provide to show a current or mental disability, including VA records, recurrent symptoms, and lay statements from people describing her symptoms. In a May 2007 Statement of the Case (SOC), the RO again denied the Veteran’s claim for PTSD because the evidence of record did not show that the disability had been clinically diagnosed. The Veteran did not provide new and material evidence or appeal the denial of her PTSD claim. Thus, the September 2005 rating decision denying entitlement to service connection for PTSD became final in July 2007. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. On November 12, 2012, the RO received the Veteran’s petition to reopen her claim for PTSD. She alleged that her PTSD stressors included multiple deployments, surviving a helicopter crash, and being sexually abused by service members. Following additional development, to include an August 2013 VA Initial PTSD Disability Benefit Questionnaire (DBQ) examination, the RO, in a March 2014 rating decision, denied the claim. In March 2015, the Veteran submitted a NOD challenging the March rating decision. In April 2016, the RO granted service connection for PTSD at 50 percent disabling, effective November 12, 2012. The RO indicated that the August 2013 examiner’s opinion support a finding that the Veteran suffered an in-service assault. The Board notes that there is no probative evidence that the Veteran filed a substantive appeal as to the initial denial of the PTSD claim in the September 2005 rating decision or filed a request earlier than November 12, 2012, to reopen her claim for PTSD. Thus, the correct date for the entitlement of service connection for the Veteran’s reopened claim for PTSD is November 12, 2012. The earliest medical evidence of record showing a correlation between the Veteran’s PTSD and service is August 27, 2013, the date of the VA examination, which diagnosed PTSD and found a nexus to service. This August 2013 date is a less favorable effective date than November 12, 2012, the date assigned by the RO, and the date of receipt of the Veteran’s petition to reopen her claim. The effective date for the grant of service connection following a final decision is the date of the reopened claim. Sears v. Principi, 16 Vet. App. 244, 248 (2002) (“the Court thus holds that the effective date statute, 38 U.S.C. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed”), aff’d Sears v. Principi 349 F.3d 1326 (2003). Accordingly, the Board finds that preponderance of the evidence is against the assignment of an effective date before November 12, 2012, for service connection for PTSD. Therefore, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is sympathetic to the Veteran’s situation. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). “No equities, no matter how compelling, can create a right to payment out of the United States Treasury, which has not been provided for by Congress.” Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). 2. Disability ratings Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. Where there is a question as to which of two evaluations shall be applied under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Third, the Board must weigh the probative value of the evidence considering the entirety of the record. The Veteran’s PTSD was initially assigned a 50 percent disability rating under Diagnostic Code 9411. 38 C.F.R. § 4.130. PTSD is evaluated under the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. A. Entitlement to initial rating higher than 50 percent for PTSD, is denied. The Veteran contends that a higher initial rating higher than 50 percent is warranted for her PTSD. The Veteran was afforded a VA Initial PTSD DBQ in August 2013. The examiner diagnosed PTSD and indicated that the level of occupational and social impairment as 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 were noted to include chronic sleep impairment, flattened affect, and inability to establish and maintain effective relationships. She reported having suicidal thoughts in the previous 12 months but not in the past 6 months; she denied any plan or intent of self-harm and indicated that she felt “protected” from these thoughts because she was now in therapy. The Veteran described having nightmares and difficulty falling asleep, which she said had improved with the use of medication. Additional symptoms included crying spells every three weeks and feelings of hopelessness. The Veteran reported being divorced. She also reported having two siblings; a brother with whom she spoke weekly and a sister she spoke to once every two to three weeks. She had some friends, not a lot, whom she got together with to eat at a local cafe or an Italian place, once per month. She spent her free time at home, mowing the lawn, picking apples, reading, and going for walks. She attended church monthly. In addition to the VA examination, the Veteran’s treatment record consists of VA treatment notes showing her receiving treatment and therapy sessions for PTSD and military sexual trauma. During the therapy sessions, numerous mental status examinations (MSE) were conducted. During a March 2012 therapy session for PTSD, the clinician noted the MSE, which found the Veteran to be alert, oriented times four, and cooperative. Her mood was “good,” and her affect euthymic, full-range, non-labile. She denied suicidal and homicidal intent and plan. Her thought process was logical and linear. Her thought content was appropriate, and she did not reveal any obsessions, hallucinations, illusions, paranoia, or delusions. The Veteran’s hygiene and grooming were good. Her speech rate, rhythm/tone were within normal limits. Her attention, concentration, judgment, and insight appeared to be good. Her memory, cognitive status, and attention were intact, while her impulsivity was low. Similarly, every other MSE conducted during this period on appeal found the Veteran to be alert and fully oriented, neatly dressed, with good hygiene. There was no evidence of a thinking disorder. Her insight was consistently deemed fair, and her judgment good. Neither suicide nor homicidal intent was noted. Her mood fluctuated between mildly depressed to euthymic, while her affect was either anxious or congruent. Based on the evidence presented, the Veteran’s PTSD is more closely described by occupational and social impairment with reduced reliability and productivity. During the period before June 02, 2016, the Veteran reported having a relationship with her two siblings, and friends whom she dined with monthly. She also attended church monthly. The VA clinician found her to be alert, fully oriented, neatly dressed, with good hygiene. Her insight was consistently deemed fair, and her judgment good. Additionally, she exhibited chronic sleep impairment, flattened affect, and inability to establish and maintain effective relationships. Further, neither the VA examiner nor clinicians have noted suicidal or homicidal ideation. Given the frequency, nature, and duration of the Veteran’s symptoms, the Board finds that they do not result in occupational and social impairment for the period before June 02, 2016. They do not more closely approximate the types of symptoms contemplated by the 70 percent rating, and therefore, a 70 percent rating is not warranted. Vazquez-Claudio, 713 F.3d at 114 (holding 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 Board finds that the Veteran’s symptoms from PTSD have not more closely approximated the criteria for a rating greater than 50 percent during the period before June 02, 2016. Therefore, the Board may not stage her rating. Fenderson, 12 Vet. App. at 125-26. The probative evidence of record does not show that the particular symptoms associated with the higher percentage or others of similar severity, frequency, and duration result in occupational and social impairment. Therefore, a 70 percent rating is not warranted. B. Entitlement to initial rating of PTSD higher than 70 percent beginning June 02, 2016, is denied. The Veteran contends that a higher rating than 70 percent beginning June 02, 2016, is warranted for her PTSD. On June 02, 2016, the Veteran underwent a private Initial PTSD DBQ, conducted by H. H-G., a licensed psychologist, wherein she reported being divorced and living alone. She also reported that she “ke[pt] her struggles to herself” and was socially isolated and withdrawn. Upon examination, Dr. H. H-G. noted the Veteran’s level of occupational and social impairment to be occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The clinician relayed that the following symptoms actively apply to the Veteran’s PTSD diagnosis: depressed mood, anxiety, suspiciousness, chronic sleep impairment, panic attacks that occur weekly or often, near continuous panic, mild memory loss, such as forgetting names, directions or recent events, flattened affect, impairment of long-term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships, suicidal ideation and neglect of personal appearance and hygiene. On the MSE, there was no evidence of disorganized thought, impaired speech, or overt hallucinations. The Veteran complained of increased trouble with her short and long-term memory and indicated that she had trouble remembering basic information. The Veteran underwent a second VA examination in November 2017. The Veteran reported that she continued to live alone and spent her days “piddling,” watching old Westerns with an elderly neighbor, and shooting squirrels with her .22 caliber firearm. She also reported to being avoidant of public spaces and only shops “off” hours. Her only social involvement was with her elderly neighbor, with whom she cooks/eats; they are company for each other. Since her dog died, she had not slept as well, with her sleep varying between four and six hours and is often interrupted by nightmares. She reported, “I can hear dust moving.” If awakened, she had to check all doors and windows. The Veteran also reported that she avoided getting another dog because she could not get past the potential for another loss. She also reported not having had any work or further educational experiences since her last VA exam. Also, she still occasionally spoke to her brother but continues to be estranged from her sister: “I wasn’t real[ly] nice for a while, I guess she hasn’t forgiven me.” The examiner noted that the Veteran continued to be followed by the VA system and was seen every three months for medication management, and weekly individual therapy until August 2017. The Veteran was currently prescribed sertraline and prazosin for mood and nightmares. The examiner summarized the Veteran’s level of occupational and social impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner noted that the following symptoms apply to the Veteran’s PTSD diagnosis: depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names; directions or recent events; flattened affect; difficulty in understanding complex commands; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; including work or a work-like setting; inability to establish and maintain effective relationships; and neglect of personal appearance and hygiene. Additional symptoms attributable to the Veteran’s PTSD included mild paranoia, dissociative reactions resulting in spatial, as well as time and place disorientation, and intermittent neglect of personal appearance and hygiene, The examiner noted that the Veteran could manage her financial affairs. The examiner remarked that the Veteran arrived early for her scheduled exam and casually dressed and adequately groomed. She was alert, oriented, cooperative, made little eye contact, and was easily engaged. Her speech/language was within normal range and characterized by an anxious quiver at times. Her mood appeared to be dysthymic with episodic agitation, and affect was relatively flat. No perceptual disturbances were noted. However, she did describe dissociative reactions (flashbacks) that were with complete loss of awareness: “When I come back to reality, I’m not in the same physical space where I started.” Her thought process, content, and associations were generally logical and linear. Neither suicidal nor homicidal ideations were not endorsed or noted. Her insight appeared to be fair; judgment, good, abstracting, and developmentally intact. Although she struggled with temporal memory issues, no gross cognitive impairment or overt memory issues were noted. In addition to the private and VA examinations provided during this period, the record also consists of VA treatment notes showing continuous therapy for her PTSD. During her therapy sessions, MSEs were conducted and repeatedly showed the Veteran to be alert and fully oriented, neatly dressed, with good hygiene. There was no evidence of a thinking disorder. Her insight was consistently deemed fair, and her judgment good. Neither suicide nor homicidal intent was noted. Her mood fluctuated between slightly depressed in (September 2016), to euthymic, while her affect was either friendly or congruent. After a review of the evidence presented above, the Board finds that the frequency, severity, and duration of the Veteran’s PTSD symptoms reported or shown are suggestive of occupational and social impairment with deficiencies in most areas, the level of impairment contemplated by a 70 percent rating. The Veteran’s psychiatric disorder is not more closely described by both total occupational and total social impairment. During the period, the private examiner, H. H-G., noted that the Veteran reported having suicidal ideations. However, the November 2017 VA examiner noted neither suicidal nor homicidal ideation. Similarly, during her weekly individual therapy sessions, she consistently denied any suicidal or homicidal ideation. Nonetheless, the Board notes that thoughts of suicide are contemplated by the 70 percent criteria and can cause occupational and social impairment with deficiencies in most areas. The risk of self-harm is contemplated by the 100 percent criteria, which addresses whether one is a persistent danger to himself or others. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Here, the record does not show that the Veteran is a danger to herself or others. During the private PTSD DBQ of June 02, 2016, H. H-G., noted the that some of the Veteran’s symptoms from her PTSD included the inability to establish and maintain effective relationships and neglect of personal appearance and hygiene, in addition to suicidal ideation. However, throughout the period on appeal, the evidence of record shows that although the Veteran lives alone, she continues to have a good relationship with her brother, with whom she speaks occasionally; goes to church, albeit monthly; and cooks, eat and watch movies with her elderly neighbor. Further, the MSEs conducted during the Veteran’s weekly therapy sessions consistently found her to be alert and fully oriented, neatly dressed, with good hygiene, friendly or congruent affect, and her mood mostly euthymic. Additionally, during the November 2017 VA examination, the examiner did not report that the Veteran exhibited gross impairment in her thought process. The examiner also did not report persistent delusions or grossly inappropriate behavior. The Veteran was actually found, to be able to manage her financial affairs. The cumulative evidence of record does not show severity, enough to cause total occupational and total social impairment. “Total” is defined as “whole, not divided; full; complete,” and “utter, absolute.” Black’s Law Dictionary, 1498 (7th ed. 1999). The record does not show that total occupational impairment and total social impairment. As the most probative evidence of record does not show total and social impairment, the 100 percent rating is not warranted. Given the frequency, nature, and duration of the Veteran’s symptoms, the Board finds that they do not result in total occupational and total social impairment for the period beginning June 02, 2016. They do not more closely approximate the types of symptoms contemplated by the 100 percent rating, and therefore, a 100 percent rating is not warranted. Vazquez-Claudio, 713 F.3d at 114 (holding 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 Board finds that Veteran’s symptoms from PTSD have not more closely approximated the criteria for a rating higher than 70 percent during this period beginning June 02, 2016. Therefore, the Board may not stage her rating. Fenderson, 12 Vet. App. at 125-26. The probative evidence of record does not show that the particular symptoms associated with the higher percentage or others of similar severity, frequency, and duration result in occupational and social impairment. Thus, a 100 percent rating is not warranted. 3. A TDIU is warranted. The Veteran contends that her mental and physical conditions have made it difficult for her to obtain and maintain and employment. She has had to quit jobs because of leg, back and hand pain, and her inability to get along with co-workers, control her emotions, outbursts, and focus/attention. Total disability is considered to exist when there is any impairment, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability: that is when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must consider the Veteran’s education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). “Marginal employment” shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Faust v. West, 13 Vet. App. 342, 355 (2000). Rather, the U.S. Court of Appeals for Veterans Claims has accepted the definition of substantially gainful employment as that “at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides.” Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991); Ferraro v. Derwinski, 1 Vet. App. at 332. Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). In this case, the Veteran is service-connected for PTSD, at 50 percent, from April 12, 2012; and 70 percent from June 02, 2016; carpal tunnel syndrome, left wrist at 30 percent, from July 30, 2012; for left hip strain, at 10 percent, from June 01, 2005; low back strain, at 10 percent, from June 01, 2005; degenerative disc disease of the cervical spine, at 10 percent from June 01, 2005; status-post anterior cruciate ligament repair and medial meniscectomy left knee with osteoarthritis changes, at 10 percent, from June 02, 2005; right shoulder status post right shoulder arthroscopy with slap repair, at 10 percent, from June 01, 2005; tendon sheath cysts right hand, residuals open reduction left foot with metatarsalgia and extensor contracture of left little toe, at a noncompensable rate from June 01, 2005. The criteria for a TDIU is met, as of November 12, 2012. The Veteran submitted VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) in March 2010 and attributed her lack of gainful employment to “all” of her service-connected disabilities. She also indicated that she had been under a doctor’s care within the past 12 months. She reported that her disability affected her full-time employment in May 2005. The date that she last worked full-time was April 2018, and the date she became too disabled to work was May 2005. Regarding her schooling, she indicated four years of college. The evidence of record additionally reveals that she earned an MBA in 2010. In support of her claim, the Veteran has provided private medical opinions from Dr. H. H-G. and Dr. M. B., both of whom found that the Veteran’s service-connected disabilities rendered her incapable of substantially gainful employment. Specifically, Dr. H. H-G. found that the Veteran “cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to her PTSD.” Per Dr. M. B., the Veteran can work for a short period of time but then has difficulty controlling her PTSD symptoms and sees an increase in mood swings and outbursts. Her nightmares increase, and she becomes increasingly unable to stay focused during the day at work. She attempted to work in the Fall of 2017, Spring of 2018, and, most recently, from March to May of 2019. At each of these attempts, she started having increased irritability, difficulty with co-workers, and an increase in feelings of hopelessness, helplessness, and suicidal ideation.” Also, of record are the findings of two Residual, Functional Capacity Evaluation Re: Ability to Do Work-Related Activities (Mental), provided by H. H-G. in December 2016 and Dr. J. M. S. in December 2019. The Residual, Functional Capacity Evaluations revealed that the Veteran would miss three or more days from work per month, leave early from work three or more days, would have trouble concentrating because of her psychiatric disability, more than three days per month and would not stay focused for at least seven hours of an eight-hour workday. More than once per month, the Veteran would respond angrily but would not actually become violent. The record also contains the VA examination of November 2017, noting the Veteran’s difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. Further, the October 2019 Peripheral Nerves examination found her carpal tunnel disability impacted her ability to work. The Veteran to have severe bilateral intermittent pain and paresthesias and dysesthesias in her left wrist with keyboard use, which is aggravated at nights and interrupts her sleep. Her brother K. S. in March 2020 provided a statement attesting that for the last decade, the Veteran has been struggling with maintaining work due to her mental and physical conditions. She has a very difficult time getting along with other people because of her short-temper and impatience for other people. Further, she was terminated from her last job at Health Partners after two months, in March 2019 for bad conduct. She had trouble getting along with co-workers and managers, where they were afraid, she would come to the office and hurt them. The record confirms a February 2018 offer letter from 180 Health Partners. A second letter dated May 10, 2019, states the Veteran’s employment was terminated due to her “unprofessional behavior, clinical quality concerns, and not a cultural fit.” Also, of record are Social Security Administration (SSA) records certifying reported earnings from January 01, 2000, to December 31, 2018, and showing wages not exceeding 4,466.66, which was reported in 2017. The Board notes that in some years, i.e., 2012, 2013, 2014, no wages were reported, at all. Where reasonably raised by the facts of a particular case, the Board must address the issue of whether the Veteran’s ability to work is limited to marginal employment and, when appropriate, explain why the evidence does not demonstrate that the Veteran is incapable of more than marginal employment. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). Based on the evidence above, a TDIU is warranted. The Board finds that her service-connected disabilities, especially when considering her educational and occupational background, preclude her from securing or following substantially gainful employment. Further, the record reflects that although she worked at some points during the appeal period, her income was less than the poverty threshold, established by the U.S. Census Bureau. The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Reviewing the totality of the evidence, however, including the Veteran’s current medical findings detailing the severity of her service-connected disabilities, the competent and credible lay assertions of unemployability and marginal employment due to limitations caused by the service-connected disabilities, and the cumulative objective evidence of record, the Board finds that the Veteran’s service-connected disabilities, coupled with her educational/training background and employment history, likely preclude her from securing and following any substantially gainful employment. Accordingly, resolving all doubt in the Veteran’s favor, the Board finds that entitlement to TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.16. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.