Citation Nr: 21000752 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 13-15 556 DATE: January 6, 2021 ORDER From November 25, 2005, to March 24, 2008, an initial evaluation of 70 percent, but not higher, for service-connected posttraumatic stress disorder (PTSD) with persistent depressive disorder (PDD) is granted. From August 1, 2009 to May 26, 2011, an increased initial evaluation of 70 percent, but not higher, for service-connected PTSD with PDD is granted. An initial evaluation in excess of 70 percent for service-connected PTSD with PDD is denied. Entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. From November 25, 2005, to March 24, 2008, and from August 1, 2009 to May 26, 2011, the Veteran’s PTSD with PDD was manifested by occupational and social impairment with deficiencies in most areas. 2. The Veteran’s PTSD with PDD has not resulted in total social and occupational impairment. 3. The Veteran’s service-connected disabilities do not preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSIONS OF LAW 1. From November 25, 2005, to March 24, 2008, the criteria for an initial evaluation of 70 percent, but not higher, for PTSD with PDD are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. From August 1, 2009 to May 26, 2011, the criteria for an increased initial evaluation of 70 percent, but not higher, for PTSD with PDD are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for an initial evaluation in excess of 70 percent for PTSD with PDD are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 4. The criteria for a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 2002 to November 2005. This case comes before the Board of Veterans’ Appeals (Board) on appeal from March 2010 and February 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In the March 2010 decision, the Veteran was awarded a 10 percent evaluation effective November 25, 2005, a 100 percent temporary total rating (TTR) for hospitalization from March 24, 2008, and a 30 percent evaluation from August 1, 2009. Thereafter, in the May 2010 decision, the RO increased the Veteran’s evaluation from 30 percent to 50 percent disabling effective from April 15, 2010. Finally, while pending return to the Board, the RO, in November 2017, awarded a TTR from May 26, 2011 and a 70 percent evaluation from July 1, 2011. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a January 2016 Video Conference Board hearing. A transcript of that hearing is associated with the claims file. When this case was previously before the Board in December 2018, it was remanded for additional evidentiary development. The Board finds that there has been substantial compliance with the remand directives, and the case has been properly returned to the Board for further appellate action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record reflects that you were sent a letter indicating that you could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, you do not have a pending hearing request. You provided testimony in a hearing with a VLJ on January 26, 2016. I have considered the transcript of that hearing as evidence in making my decision. Increased Rating Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a Veteran’s disability claim may require re-ratings in accordance with changes in laws, medical knowledge, and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. When rating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When rating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. The schedule for rating mental disorders, including PTSD, is set forth in 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the general rating formula, a 10 percent evaluation is warranted if the evidence establishes that there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent evaluation is warranted when the mental disorder is manifested by occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, and recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation is warranted if the evidence establishes that there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted if the evidence establishes that 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; 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); or inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent evaluation is warranted if the evidence establishes that there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting oneself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Id. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 1. Period prior to March 24, 2008 The RO assigned an evaluation of 10 percent for the Veteran’s PTSD with PDD from November 25, 2005 to March 24, 2008. The Veteran contends that he should be assigned a higher evaluation for this period. The Board finds that the record reflects that from November 25, 2005 to March 24, 2008, the Veteran’s psychiatric disorder resulted in functional impairment comparable to deficiencies in most areas. The evidence of record during this period is replete with reported symptoms to include nightmares, intrusive thoughts, depressed mood, and irritability or outbursts of anger. An intake assessment form in August 2005, while outside the appeal period, indicated the Veteran’s complaint of nightmares recalling Iraq war experience. He was noted to be loud, alert, and talkative. He had limited insight with focus on war experiences. He had no suicidal or homicidal ideation. A record in May 2006, documented the Veteran’s report of having episodes of intense anger. The Veteran reported that he sometimes “doesn’t remember what happened.” In May 2006, the Veteran reported having a hard time relaxing and that he cannot get the memories of his two deployments in Iraq out of his head. He reported an instance of hallucination described as a “creepy crawly feeling.” He subsequently reported in May 2006, that he saw “bluish and purple splotches.” A November 2006 record documented the Veteran’s report of ongoing difficulties with anger, irritability, and impulse control. He reported suffering from intrusive thoughts and distressing dreams about combat at least twice a week. He reported being nervous and “on edge” around crowds and feared being shot in a crowd. He denied suicidal ideation or homicidal ideation. He had no current hallucinations and was noted as “not overtly psychotic.” The examiner concluded the Veteran was intoxicated on examination, but still suffered from anxiety and likely PTSD. Experiencing difficulty in crowds was corroborated in an August 2008 statement from the Veteran’s mother. In a November 2006 clinical evaluation, it was noted that the Veteran was very anxious and on methadone. His general manner was described as reserved but disagreeable. He had poor eye contact, and was generally uncooperative with requests for information. His effect was noted to be full and his range of emotions appeared moderately anxious. He displayed some pressured speech. He reported his last employment was as a security guard, but that he had to quit due to a service-connected disability. He indicated that prior to that, he was employed busing tables and the “running around got him to quit.” The evaluator concluded that the Veteran may benefit from psychological evaluation, and that it was hopeful that the Veteran would be able to continue toward the attainment of competitive employment. On examination in September 2008, the Veteran reported suffering from nightmares about twice per week. He also reported difficulty maintaining control over his anger. He reported no social life, and having no friends. He reported “burning every bridge.” However, the Veteran alluded to having a relationship with some family members and stated, “the only people who stand by me are my sister, my mother, and my grandmother.” The examiner noted the Veteran was arrogant, loud, and hyperactive on examination. He reported short-term memory problems and being easily distracted. The Veteran reported anxiety, panic attacks, depression, insomnia, crying spells, anhedonia, and nightmares. He indicated irritability and anger control problems, obsessional ideation and racing thoughts, as well as hypervigilance and startle problems. He reported auditory and visual phenomenon. He denied suicidal or homicidal ideations. The examiner indicated that although the Veteran reported numerous PTSD symptoms his primary problems have to do with substance abuse and personality disorder. A July 2009 VA treatment record indicated, however, that the Veteran’s current profile did not appear to be consistent with a personality disorder, specifically antisocial personality disorder. The psychologist explained that although the Veteran certainly displayed antisocial behaviors in the past, those behaviors were most likely a consequence of his addiction. The Veteran was diagnosed with PTSD and polysubstance dependence, sustained in full remission, in a controlled environment. The Veteran has argued that he engaged in illegal behaviors because he was suffering from untreated PTSD. See January 2016 hearing transcript. In this regard, the record indicates that in October 2006, the Veteran was charged with simple burglary of a pharmacy. He was charged with DUI’s in November 2006. His license was revoked in November 2006 due to noncompliance with tests of blood, breath, saliva, and/or urine. He was subsequently charged with additional DUI’s in December 2006 and in February 2007. However, the Veteran is not service-connected for substance abuse, see September 2008 rating decision, and the record does not indicate the Veteran’s substance abuse has been attributed to his PTSD. The Board finds that during the period between November 25, 2005 to March 24, 2008, the Veteran’s level of near-continuous anger and irritability represents a deficiency in the area of mood and impulse control. The record thus reflects deficiencies in most areas due to PTSD with PDD symptoms specifically an inability to establish and maintain effective relationships, and deficiencies in family relationships, and mood. As such, the Veteran’s symptoms prior to March 24, 2008 warrant a rating of 70 percent. A rating higher than 70 percent is not appropriate because the record during this period does not indicate total occupational and social impairment due to the PTSD with PDD alone. Although the Veteran reported instances of hallucinations during treatment in May 2006, the Veteran later denied hallucinations at discharge, during his November 2006 outpatient psychological evaluation, and during his September 2008 VA examination. The record also indicates that the Veteran regularly denied suicidal or homicidal ideations. While the record indicates anger and irritability, the Veteran was able to curb his anger enough to avoid grossly inappropriate reaction such as physical violence. He is also shown to have worked during this period and to having maintained multiple social relationships. As such, the Veteran is not totally impaired due to the PTSD with PDD alone, and a rating higher than 70 percent is not warranted prior to March 24, 2008. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.21. 2. Period from August 1, 2009 to May 26, 2011 The RO assigned an evaluation of 30 percent for the Veteran’s PTSD with PDD from August 1, 2009 to April 15, 2010, and an evaluation of 50 percent for the Veteran’s PTSD with PDD, from April 15, 2010 to May 26, 2011. The Board finds that an increased initial evaluation of 70 percent, but not higher, is warranted for the Veteran’s PTSD with PDD, for the period from August 1, 2009 to May 26, 2011. The Board has considered whether a total schedular evaluation is warranted during the period from August 1, 2009 to May 26, 2011. However, the Veteran did not endorse any of the symptoms listed in the criteria for a 100 percent evaluation, and the symptoms he did experience are not of similar severity, frequency, and duration as those associated with a total evaluation. For example, the Veteran reported some instances of suicidal ideation during this period, but he was not in persistent danger of hurting himself. In November 2010, the Veteran was admitted under a Baker Act after he reportedly threatened to shoot himself. He denied suicidal ideation or ever making a suicide attempt. He admitted to drinking 4 beers a day. He was diagnosed with PTSD and with alcohol abuse. It was noted the Veteran was not considered dangerous to himself or others. It was determined that the Veteran was not subject to involuntary admission and the Baker Act was vacated. Other than the November 2010 incident identified above, the Veteran did not manifest active suicidal ideation during the period from August 1, 2009 to May 26, 2011. The record during this period of time, however, continues to document anger issues. A February 2010 record notes the Veteran’s report of increased trouble controlling his emotions. He desired to get established with mental health for an assessment and treatment to lower his anxiety. He indicated that he did not want any controlled medications due to his history of substance abuse. A June 2011 treatment record noted the Veteran appeared to compartmentalize his thinking and is very angry. The Veteran was noted to have unresolved anger due to what he witnessed in the war. With respect to occupational and social functioning, the Veteran did not experience total impairment due to PTSD with PDD. An October 2009 treatment record indicates the Veteran was admitted into the Wounded Warrior Program (WWP). He expressed that his goal was to assist other Veterans with substance abuse. See October 2009 treatment record. The Veteran was afforded an examination in April 2010. At that time, the Veteran reported anxiety and concern that when the WWP ended he would not have the structure that is keeping him drug-free and engaged with other Veterans in treatment. The Veteran’s symptoms included poor sleep, being tense “on edge,” nightmares of war experience, decreased appetite, poor concentration, worry about future, feeling numb towards others (difficulty maintaining relationships), strong emotional reaction to reminders of military experience, physical aches and pains, angry outbursts, and sadness (tearfulness). The examiner noted the Veteran had a good ability to maintain control over impulses while in a supervised environment and stated that while the Veteran has angry outbursts, he is able to suppress them. He had no delusions. He had no obsessive behaviors, panic attacks, homicidal thoughts, or suicidal thoughts. The Veteran attributed his unemployment to mental health problems and to his current status as a full-time student and in recovery/mental health treatment for the past two years. The examiner noted the Veteran’s participation in structured substance abuse/mental health programs which have been preparing him for independent living but he had yet to achieve that as he remained engaged in a semi-structured program (WWP) in which he is attending school to receive work training. The examiner noted that the Veteran’s problems with irritability, anxiety, concentration, and sleep difficulty interfere with his being a reliable and well-functioning employee. The examiner further noted that the Veteran’s irritability, suspicion of others, and feelings of numbness interfere with developing supportive relationships. The examiner noted, however, that the Veteran has developed supportive relationships with other members of WWP, and with treatment personnel. The examiner remarked that the Veteran’s past substance abuse strained most of his earlier relationships. The Veteran was afforded a VA examination in January 2011. On examination, the Veteran reported anxiety, worry, shortness of breath with sweaty palms, racing thoughts, and sleep impairment. His speech was spontaneous, his attitude was contemptuous, aggressive, and irritable. His affect was appropriate. There was no evidence of concentration or attention problems. He was oriented and his thought process was unremarkable. He had no hallucinations or inappropriate behavior. He reported sleep impairment of typically five hours of sleep and not usually over six hours. The Veteran reported panic attacks, but denied suicidal or homicidal ideation. His impulse control was fair. His social functioning ability was noted as attending college and interacting with others but currently living alone. The examiner stated the Veteran may have some attention/concentration decline when anxious that may negatively impact his academic functioning. The examiner concluded that the Veteran last worked several months ago and there is no report of occupational functional impairment related to anxiety alone found in the record. There is no lay or medical evidence during the period from August 1, 2009 to May 26, 2011, that the Veteran experienced problems with communicating, an inability to perform activities of daily living, or disorientation or memory loss of such severity that he forgot the names of his close relatives or own name. Thus, the Veteran’s PTSD symptoms were not of similar severity, frequency, or duration as those contemplated by a total schedular rating under the General Rating Formula. The Board has considered whether there is any other schedular basis for granting a higher evaluation other than that discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against an evaluation higher than that assigned above for the period from August 1, 2009 to May 26, 2011. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.21. 3. Period from July 1, 2011, Forward After review of the evidence, the Board finds that a rating in excess of 70 percent is not warranted for the Veteran’s PTSD with PDD, from July 1, 2011, forward. From July 1, 2011, forward, the Veteran’s disability manifests symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in stressful circumstances, including work or work like setting, suicidal ideation, and neglect of personal appearance and hygiene. See December 2016 VA examination. Additional symptoms include decreased interest, appetite, psychomotor changes, energy, self “absent”, concentration, and thoughts of death. See January 2020 VA examination. The record does not indicate the presence of any of the specific symptoms identified in the criteria for a total 100 percent evaluation. The Veteran’s thought processes and ability to communicate were intact throughout this period and he has consistently denied any thoughts of hurting others. The Veteran testified at his January 2016 hearing that he “wanted to put a bullet” in his mouth but didn’t do it because of his son. On examination in December 2016, the Veteran reported being hospitalized for attempting suicide in 2010, and that he had made an attempt at suicide two weeks prior to the examination by purposefully driving into the back of an 18-wheeler. The January 2020 VA examination documented the Veteran’s report of a recent suicidal ideation. As noted above, in the November 2010 treatment record, the Veteran denied suicidal ideation or ever making a suicide attempt. It was further noted the Veteran was not considered dangerous to himself or others. In a November 2016 emergency room discharge instruction record, the Veteran was diagnosed with abrasion of the knee, back pain, and motor vehicle collision victim. A November 2016 civilian police report documents the Veteran’s report that the collision occurred while he was attempting to pass another vehicle causing him to crash into its right rear side. He reported that his vehicle started burning and that he exited the passenger side window. November 2016 statements from two witnesses report that they observed that the Veteran’s vehicle tried to pass an 18-wheeler on the right at a very high rate of speed and became wedged between the rear wheels of the trailer and the guard rail before being dragged up an incline when the vehicle and the trailer brakes caught fire. A November 2016 statement from the driver of the 18-wheeler reported that while driving, a car hit the right side of his trailer at the wheels. Investigation revealed the Veteran was at fault for the collision and he was charged with careless operation. A January 2017 record indicates the citation was dismissed. The January 2020 VA examination documents the Veteran’s report that on the ninth of that month, he was in his office and had a passing thought of what it would be like to slice his arms with his scissors. He reported that he had shared this with his wife and that she was supportive. He added, “I’m glad I didn’t go through with it.” In sum, there is no evidence the Veteran has ever physically harmed himself or another person and his treatment providers consistently note that he has denied suicidal ideation or homicidal ideation. A March 2012 treatment record indicates the Veteran denied a history of suicide attempts. In August 2012, the Veteran’s thought process was noted to be logical, coherent, and goal directed. He denied suicidal or homicidal ideation. A January 2013 record reports that the Veteran denied suicidal ideation or homicidal ideation. A March 2016 treatment record shows that no self-harm thoughts were noted. He was negative for suicidal and homicidal ideation on examination in January 2020. The record during this period continues to document anger issues. In an August 2012 treatment record, the Veteran reported increased anxiety, acting out, and getting angry. He reported an instance when he was awakened from a dream and struck his girlfriend. On another occasion, after getting up for the day he noticed the front door was open. He returned to the bedroom for his gun and was clearing the house and found his girlfriend standing there. The Veteran testified at his January 2016 hearing that he would run people off the road, “road rage,” and stated “I hope you can see through my disabilities, and my anger, and my unprofessionalism at times.” However, the overall severity of the Veteran’s service-connected PTSD with PDD has not most nearly approximated total occupational and social impairment. The record establishes that the Veteran has maintained full-time employment since July 2016 with the Texas Association of County as a Veteran Court Coordinator. See July 2016 record. A June 2017 treatment record indicated the Veteran’s position at the courts is going decently for him. A December 2017 record similarly indicates the Veteran continues to work for the Veteran’s court and that his housing, employment, and income are secure and stable. A January 2019 treatment record indicates the Veteran is doing well and has no case management needs. He reported that he continues working with the court and finds the work rewarding. During his January 2020 VA examination, the Veteran reported that he is gainfully employed as the coordinator for a Veteran’s court. The Veteran reported being reliable at work, but didn’t consider himself to be productive. He reported being written up by the judge and has had problems with defense attorneys who are “nothing but egos.” Prior to his full-time employment, the record shows the Veteran was a full-time student. A June 2012 record documents the Veteran’s report that he was on the dean’s list at school and that he had started working within the prisons and jails conducting AA meetings. A July 2014 vocational rehabilitation counseling record indicates the Veteran had been accepted into the Master of Social Work program at the University of Houston, and that prior, the Veteran successfully completed his Associate of Arts degree and his Bachelor of Arts in Psychology. This record noted the Veteran has “long held an interest in counseling and social work profession and desires to work with other Veterans.” A December 2014 treatment record notes the Veteran’s report of memory loss/poor concentration. He was noted to become easily frustrated and is able to utilize students with disabilities services at school giving him extra time to complete assignments. This record notes the Veteran’s occupation to be full-time student attending graduate program for social work, he has earned all A’s this semester, and completed his Bachelor’s degree with a 3.8 GPA. There is also no evidence in the record from July 1, 2011, forward that the Veteran’s memory problems most nearly approximate memory loss for the names of close relatives, his own occupation, or his own name, nor is there evidence of gross impairment to thought processes or communication or an inability to perform daily activities. Regarding social impairment, the Veteran has maintained a relationship with his grandmother. See September 2013 treatment record. During his December 2016 VA examination, the Veteran reported being married in June 2016, and construed his marriage as “healthy, at times.” He reported that he has no friends, or social support, or family close by. During his January 2020 examination, however, the Veteran described his relationship with his wife as “meaningful.” He reported that he has a support system, engages in hobbies and leisure activities, and is part of Veteran’s and social organizations. He reported that he has not participated in mental health treatment since his last evaluation in 2016, and there is no evidence of persistent, impairing military-related mental health symptoms. On examination in January 2020, the Veteran was negative for symptoms of panic disorder, mania, generalized anxiety disorder, obsessive-compulsive disorder, and psychosis. The Veteran stated that (he wanted to talk about) how his criminal history affects his work functioning. He connects his criminal history to his high-risk behaviors and knows that not having treatment in the past three years is not favorable for him. The Veteran was noted to be alert and oriented. He was dressed and groomed appropriately. His mood and affect were agitated and confrontational. He was vague with responses and had to be asked to clarify or to provide additional information multiple times. There was no evidence of delusions or hallucinations. His memory was intact. He was accompanied to his appointment by his wife who remained in the waiting room. He kissed her as he got up to come to his appointment. A March 2020 record indicated the Veteran’s concern about interacting with people who may have access to his personal medical information. This record noted that the Veteran will provide the name of a private medical doctor by whom he would like to be seen. Although the Veteran’s symptoms clearly establish some degree of occupational impairment and severe social impairment, the medical and lay evidence does not establish total impairment. In conclusion, the preponderance of the evidence is against a finding that the severity of the Veteran’s symptoms is contemplated by a 100 percent evaluation. The Veteran manifests significant symptoms associated with PTSD with PDD, but he does not demonstrate any of the specific criteria contemplated by a total schedular evaluation or symptoms of similar severity, frequency, and duration at any time from July 1, 2011, forward. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran has a meaningful and supportive relationship with his wife, he has remained employed since July 2016, and prior to July 2016, he was able to successfully complete his undergraduate and graduate degrees. The symptoms and manifestations documented above are contemplated by the currently assigned 70 percent evaluation. The Veteran has never manifested symptoms that are of similar severity, frequency, and duration as those considered by a 100 percent evaluation, to include total occupational and social impairment. The Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for an increased evaluation from July 1, 2011, forward. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.21. 4. Entitlement to a TDIU The Veteran contends that he is unemployable due to service-connected disabilities. He argues that his current job position is grant-funded and that grant funding is not guaranteed. He stated that if the grant “goes away” then he will be unemployed. See May 2019 statement. An award of a TDIU requires a Veteran be unable to obtain or maintain a substantially gainful occupation as a result of a service-connected disability or disabilities. For schedular consideration, a Veteran must meet one of the following conditions: 1) if he has just one service-connected disability, it must be rated at 60 percent or more, or 2) if he has more than one service-connected disability, at least one must be rated at 40 percent or more with additional service-connected disability sufficient to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). During the applicable review period, the Veteran has been in receipt of a combined evaluation for compensation of 70 percent from April 15, 2010, 100 percent from May 26, 2011, 80 percent from July 1, 2011, and 90 percent from December 5, 2016. He is service connected for PTSD with PDD, RSD Right Foot and Ankle, and Residuals of Closed Right Ankle Fracture. Consequently, the Veteran’s service-connected disabilities, including most notably his PTSD, meet the criteria for schedular consideration of entitlement to a TDIU. The question before the Board is whether the evidence indicates his PTSD, when also considering his level of education, prior training and work experience, renders him incapable of obtaining or maintaining substantially gainful employment. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). 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). In making this determination, consideration may be given to his level of education, special training, and previous work experience, but not to his age or to impairment owing to non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that “substantially gainful employment,” in the TDIU context, contains economic and noneconomic components; the economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. The Court also provided guidance as to the meaning of a veteran’s ability to “secure and follow” such employment, noting that attention must be given to: the veteran’s occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. The evidence establishes that the Veteran is currently working full-time. In this regard, the evidence includes the Veteran’s VA Form 21-8940 (“Veteran’s Application for Increased Compensation Based on Unemployability”) submitted in May 2019. The Veteran reported that his PTSD with PDD prevents him from securing or following substantially gainful employment. He reported that his highest level of education is four years of college and that he obtained a Master’s in Social Work in May 2016. He indicated that he is currently full-time employed with the court and has been since July 2016. He indicated that his annual income is $48,000.00 and that his monthly income is $4,000.00. He indicated, however, that his vocational counselor did not “honor the preapproved plan” by not funding the clinical hours needed for his LCSW education. He wrote that he needed to find a job to make ends meet and that he refused to sign any documents labeling him employment ready. He reported that he cannot get licensed due to his criminal history. In support of his claim, the Veteran submitted a November 2017 statement indicating that it has been determined that his past criminal history may present a barrier to licensure. The correspondence further indicated that although he is not automatically disqualified for licensure board, based on his history, his application will have to be reviewed by the board to determine eligibility. There is no further indication in the record that the Veteran took further action to apply for licensure. Nevertheless, the Board finds the Veteran is currently working full-time, and the lay and medical evidence does not establish that his PTSD with PDD, alone or together with his other service connected disabilities, is of sufficient severity to render him unemployable and unable to obtain and maintain substantially gainful employment. The fact remains that he has maintained full-time employment since 2016, and the income produced from his employment well-exceeds the poverty threshold. Moreover, while his job position may be dependent on grant funding, there is no evidence that he in a protected work environment. The Board recognizes that “protected environment” has not been expressly defined by regulation. Merriam-Webster’s Collegiate Dictionary offers several definitions of the word “protect,” but one that appears to be applicable in this inquiry is “to save from contingent financial loss.” See Merriam-Webster’s Collegiate Dictionary (online) (2017). “Contingent” can mean “likely but not certain to happen,” i.e., possible. Id. Thus, within the context of awarding a TDIU, a protected work environment exists when one’s employment is not based on merit alone, but rather is established to save the individual from likely financial loss. In other words, a protected environment is an employment environment that would not exist, but for the willingness of the employer to hire and pay the employee for altruistic reasons. Again, there is no indication that his employment with the Court as a counselor falls within the scope of a protected environment. Consideration is given to whether the Veteran is entitled to a TDIU for the period prior to July 2016. In this regard, the evidence includes the Veteran’s VA Form 21-8940 submitted in September 2010. At that time, the Veteran reported he was last employed from May 2006 to October 2006. He indicated he earned $8,000.00. He reported completing 4-years of high school. He reported that he had been enrolled in a transition program to help him get skills and education to get a job since August 2009. Indeed, during this period, he successfully completed and obtained multiple degrees, to include a Master’s degree. An October 2010 statement from the Veteran’s last employer indicated the Veteran had been employed from July 2006 to August 2006. He earned $1,638.92. He was terminated due to negligence in the operation of a client’s golf cart. In his May 2013 substantive appeal, the Veteran wrote that his former employer’s report that he was fired due to negligence of a golf cart is “completely false.” He stated he committed a “high risk, dangerous felony of attempted simple burglary” of a pharmacy at the women’s hospital while on duty. At his January 2016 hearing, the Veteran testified that he can never work again because he is now a felon. The Board notes, however, that the Veteran was able to secure full-time employment approximately six months after his January 2016 hearing. Turning to the remaining evidence of record, the record includes an October 2010 record indicating the Veteran was feasible for employment. In January 2011 a VA examiner opined the Veteran may have some attention or concentration decline when anxious that may negatively impact his academic functioning. The examiner concluded, however, that the Veteran last worked several months ago and there was no report of occupational functional impairment related to anxiety alone. The examiner noted the Veteran’s report that due to his revoked license and difficulty walking he had problems attending appointments. However, in a January 2011 VA examination for the Veteran’s service-connected right ankle and foot disabilities, the examiner opined the Veteran’s right ankle had normal motor strength, sensory perception, and range of motion which should not impair right ankle function. The examiner remarked that the biggest limitation seemed to be subjective perception of pain which is not an objectively quantifiable characteristic. The examiner further opined that the only evidence of the effects of RSD in the right foot are loss of hair over the right toes, and subjective complaints of dysesthesia over the skin of the right foot. The examiner concluded that, otherwise, the examination revealed normal motor strength, sensory perception, and range of motion of the right foot which the examiner indicated should not preclude normal functional use of the right foot and ankle. A June 2014 statement from the Veteran indicated that he believed a barrier to his employability to be lack of education to obtain a gainful job within his psychology undergraduate degree. He wrote that he would like to obtain a Master’s level accredited degree in Social Work. However, the Veteran was able to successful complete his undergraduate and graduate programs and secure full-time employment. A December 2016 examiner opined that the Veteran has difficulty attending to tasks, is easily distracted, has concentration issues and intrusive thoughts, and has difficulty accepting supervision or receiving instructions without becoming angry, and difficulty functioning with others other mental health problems such as panic attacks irritability suspicions that interferes with his ability to work. The examiner noted the Veteran’s report that recently the Veteran had challenged authorities, including a judge and mental health professionals, in their handling of a situation that included another Veteran and that despite their warning and insistence, he continued his tirade, which led to his suspension. Nevertheless, the Veteran remained employed with the Veteran’s court as indicated in the January 2020 VA examination report. The competent evidence establishes that the Veteran was not unemployable due to service-connected disabilities at any time during the period on appeal. VA examiners throughout the appeal period identified the presence of PTSD with PDD symptoms and accompanying occupational impairment but not an inability to work. Indeed, VA examiners in 2010, 2011, 2016, and 2020 specifically characterized the Veteran’s occupational impairment due to PTSD with PDD as productive of no more than deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. In sum, the record established that the Veteran’s occupational history, education, skill and training show that he would be able to maintain substantially gainful employment. It is again emphasized that he has maintained full-time employment since 2016, and that he was a full-time student prior to that time. He is also shown to have maintained the physical ability to perform occupational activities. Finally, while his PTSD does result in significant impairment, the Veteran has demonstrated that he has the mental ability to perform occupational activities. The preponderance of the evidence is against a finding that the Veteran is unemployable due to service-connected disabilities. Accordingly, the benefit-of-the-doubt rule is inapplicable, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 4.15, 4.16, 3.340, 3.341. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.