Citation Nr: 21000770 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-58 422A DATE: January 6, 2021 ORDER Entitlement to an initial disability rating of 70 percent, but no higher, for major depressive disorder (MDD) with persistent depressive disorder (dysthymia) prior to February 18, 2020 is granted. Entitlement to an earlier effective date prior to February 28, 2018 for the grant of total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to February 18, 2020, the Veteran’s service connected MDD with persistent depressive disorder (dysthymia) manifested as occupational and social impairment with deficiencies in most areas; it did not manifest as total social and occupational impairment. 2. The preponderance of the evidence shows there is no basis to conclude that the Veteran was unable to secure or follow a gainful occupation based on his service-connected disabilities prior to February 28, 2018. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating of 70 percent, but no higher, for MDD with persistent depressive disorder (dysthymia) prior to February 18, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9434. 2. The criteria for an earlier effective date prior to February 28, 2018 for the grant of TDIU have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1979 to October 1984. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 and June 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In September 2017, the Veteran provided testimony before the undersigned. A copy of the transcript is associated with the claims file. These matters were previously remanded in March 2019 for further development and have been returned for appellate consideration. In a July 2020 rating decision, the RO granted an increased rating for MDD with persistent depressive disorder (dysthymia) from 30 percent disabling to 70 percent disabling effective February 18, 2020. The Veteran specified in his December 2016 substantive appeal that he was seeking a 70 percent evaluation. As the increased rating was a partial resolution of the appeal, the issue of an increased rating prior to February 18, 2020 remains on appeal. In a July 2020 rating decision, the RO granted entitlement to TDIU and assigned an effective of February 28, 2018. In a July 2020 correspondence, the Veteran disagreed with the effective date assigned, although such is not necessary, given a recent decision of the United States Court of Appeals for Veterans Claims in Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that once entitlement to TDIU is put in issue as part of a claim for a higher initial rating/increased rating, and the RO grants TDIU that does not span the entire period on appeal, the issue of entitlement to TDIU for an earlier period is still on appeal). The Board notes that new evidence has been associated with the Veteran’s claims file since the July 2020 supplemental statement of the case (SSOC). Generally, the Board may not consider evidence not previously reviewed by the Agency of Original Jurisdiction (AOJ) unless a waiver of initial AOJ review is obtained from the veteran. 38 C.F.R. § 20.1304 (c); Disabled Am. Veterans v. Sec’y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003). However, if an appellant filed a substantive appeal on or after February 2, 2013, as occurred here, an automatic waiver of initial AOJ review is implied for new evidence submitted by the appellant or representative to the AOJ or the Board. 38 U.S.C. § 7105 (e). Because the Veteran filed his substantive appeal after February 2, 2013, and he has not specifically requested initial AOJ consideration of the evidence, such waiver is presumed. 1. Entitlement to an initial disability rating of 70 percent, but no higher, for MDD with persistent depressive disorder (dysthymia) from August 12, 2013 to February 18, 2020 is granted. The Veteran’s service connected MDD with persistent depressive disorder (dysthymia) has been evaluated as 30 percent disabling prior to February 18, 2020 and as 70 percent disabling thereafter, under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9434. Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran’s disability, 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. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the provisions for rating psychiatric disorders, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when 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 rating is warranted when 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 work like setting; inability to establish and maintain effective relationships.) A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9434. Ratings are assigned according to the degree of occupational and social impairment resulting from manifestations of the disability at issue. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the 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 evaluating 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 evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. A September 2013 VA treatment record reflected the Veteran’s reports of suicidal ideations, twice per month, over the past two years due to financial concerns. He said if he were to act on his ideations, he would sit in a car with the engine running while in the garage or not wear his CPAP machine. See August 2016 CAPRI. A June 2014 VA examination found the Veteran’s mental diagnosis resulted in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran reported that he had been married to his third wife since October 1997 and lived with two of his children. He stated that he was enrolled in school at that time through vocational rehabilitation and was working towards a bachelor’s degree. The Veteran also reported that he was last employed in radiation protection in April 2010. In regard to his psychiatric symptoms, the Veteran reported chronic depression, low energy and motivation, difficulty sleeping and waking up, anger and irritability, and hyper-startle at the slightest of noises. The Veteran stated he had no close friends outside of his family; had feelings of hopelessness, helplessness, and worthlessness; and had no hobbies. He attributed his stress to unemployment, bills, finances, and debt. He denied suicidal or homicidal ideations. The examination reflected symptoms that included depressed mood; anxiety; panic attacks more than once a week; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, to include work like setting. Upon behavioral observations, the Veteran was alert and oriented, cooperative, mildly depressed, and with mildly constricted affect. His speech was fluent and mental status was within normal limits. Social security administration (SSA) records reflected mental health notes from Dr. J.S. The Veteran reported feeling anxious and angry due to lack of employment but had become more active in church. See November 2014 Mental Treatment Records. In a January 2015 statement, the Veteran reported that he cried a lot, threw temper tantrums, and often felt startled. He also stated that he isolated himself from others for their safety and could not watch sports or entertainment due to emotional instability. He reported mood swings, jumpiness, agitation, violence, and shouting. He endorsed suicidal ideations and reported memory problems. He stated that he has had to go to the emergency room due to muscle strains. A February 2015 VA mental health note demonstrated the Veteran’s attempted suicide by way of carbon monoxide poisoning in a garage. See August 2016 CAPRI. Mental health notes in February 2015 demonstrated a diagnosis for anxiety disorder, suicidal ideations, and adjustment disorder with depressed mood. Upon mental examination, the Veteran exhibited depressed mood, a logical thought process with some rambling, suicidal ideations (referencing an incident in 1982 where he ran his car into a tree or him inside an idle car in the garage with the engine running in September 2011 and June 2012), strong startle reactions, periods of attack, daily periods of sadness, loss of motivation, and blows ups (involving screaming because he feels marriage is shaky), and feelings of guilt or worthlessness. In March 2015, Dr. J.P.G. opined the Veteran was unable to maintain a normal daily work schedule due to ongoing symptoms of daytime excessive sleepiness and that accommodations for this limitation were appropriate. Dr. J.P.G. also indicated that based on his February 2015 mental evaluation, the Veteran’s mental disorders and their severity include major depression (mild to moderate), PTSD (mild to moderate), anxiety disorder (mild to moderate), and somatoform disorder (moderate). Dr. J.P.G noted that somatoform and excessive concerns with physical and mental health added severity to the Veteran’s own perceptions of his objectively based mental disorder status, and prognosis for improvement in depression and anxiety is fair to good depending on compliance with treatment but that PTSD is more likely long-term with fair prognosis. See March 2015 Medical Treatment Record. A May 2015 SSA decision reflected a denial of benefits based on the Veteran’s psychological disorder. Regarding daily living, SSA noted the Veteran had mild restrictions based on his ability to count change, pay bills, shop, spend time with family and friends, ability to do yard work, take his daughter to school, participate in vocational courses, and care for his homeschooled son. Regarding social functioning, SSA noted the Veteran’s records documented a history of PTSD and depression, anger issues, and social withdrawal. However, SSA also found the Veteran’s depression caused significant limitations in his ability to perform basic work activities and he exhibited moderate difficulties with concentration and persistence or pace. The denial also indicated that medical records documented complaints of feeling overwhelmed, fatigue, anxiety, social avoidance, hypervigilance, excessive anger, and suicidal ideations. Private treatment records demonstrated a history of anxiety and depression but no suicidal ideations. He also displayed cooperative and appropriate mood and normal judgement. See October 2015 Medical Treatment Record. VA treatment records from October 2015 to December 2016 noted the Veteran’s reports of worsening depression, suicidal ideations, one to two times per week, due to family issues, and stress and anxiety. See July 2016 and December 2016 CAPRI. A September 2016 letter from Dr. D.S. indicated that he was the Veteran’s treating psychiatrist since 2016 and diagnosed him with MDD, recurrent, severe, and PTSD. He stated the Veteran’s treatment course had been marked by chronic suicidal ideation, very poor response to medications, and refractory symptomatology. He indicated the Veteran was prescribed four psychoactive medications for symptoms of depression and anxiety, while one of the medications was used for refractory depressive symptoms and suicidal ideations which carries side effects including excessive daytime sedation and other metabolic abnormalities. The Veteran was noted to have marked social impairment and significant side effects from current and past medication regimens, and will likely only be able to offer volunteer services in the future; however, he was unable to maintain or sustain any type of occupation for an extended period of time due to his service connected conditions. In his December 2016 substantive appeal, the Veteran reported that the June 2014 VA examiner did not consider his reports of daily depression, irritability, anger, inability to make friends, panic attacks, stressful situations, obsessive behavior, and poor motivation. A February 2017 VA mental health note reflected the Veteran’s complaints for severe panic attacks, moodiness, lack of motivation, anger and irritability, isolation, anxiety, panic attacks occurring four to five times a night, and lack of motivation. He also reported that his moods were worsening and feared it could lead to depression and suicidal ideations. Further mental health noted demonstrated suicidal ideations since 2014, hypervigilance, exaggerate startle, ruminations over small transgressions by others, anticipatory anxiety, panic attacks triggered by nightmares, and limited social and family support. See March 2017 CAPRI. VA mental treatment records from March 2017 to July 2017 continued to reflect the Veteran’s psychiatric therapy and medications for mood, anxiety, and nightmares. See July 2017 CAPRI. During his September 2017 Board hearing, the Veteran reported symptoms of anger, irritability, isolation from others, trouble making decisions, frequent mood swings, lack of motivation and energy, and panic attacks. He attributed his inability to maintain a job due to his hypersomnia, panic attacks, and inability to make decisions. He also reported that he was not active with family members and he tended to remain in his bedroom with the doors locked otherwise as he would become very hostile and aggressive. He stated that he had no social life or friends and only went to the gym. He said he frequently endorsed suicidal ideations and that his social worker stayed on high alert because “this could be the end.” He noted bi-weekly treatments with his social worker/therapist at the VAMC in Durham and reported for medications every four to six months. He reported that a typical day for him includes waking up late due to frequent sleep interruptions, as he woke up three to four times during the night and would start the day by mowing the lawn or paying bills. He stated that his wife took care of most things while he tended to stay to himself. He also reported that he went to church once a year and had minimal interactions with his son other than on occasions when his son drove him to places that he needed to go; his relationship with his daughter was a little more interactive. The Veteran noted that his medications for hyper insomnia made it more difficult for him to function, as he reported dizziness, falling asleep, and forgetting to put his food in the microwave. A February 2018 private statement of disability from Dr. D.S. reflected a diagnosis of MDD severe, recurrent and severe daily depression, and indicated the Veteran was unable to engage in meaningful sustained social interaction and work. The report demonstrated the Veteran’s ability to engage in only limited stress situations and interpersonal relations. See July 2019 Third Party Correspondence. A January 2019 VA mental health note demonstrated some marital discord with no interest in mending the disconnect. The Veteran exhibited normal behavioral observations and his efforts to work through his anxiety by exercising and a safety plan in the event of future suicidal ideations. See January 2020 CAPRI. Based on the foregoing evidence, the Board determines that the Veteran is entitled to an initial disability rating of 70 percent for MDD with persistent depressive disorder (dysthymia), as his symptoms more closely approximates occupational and social impairment with deficiencies in most areas for the entire period on appeal. 38 C.F.R. § 4.7. Throughout the period, the Veteran variously endorsed frequent suicidal ideations, impaired impulse control, near-continuous depression affecting his ability to function, and inability to establish and maintain effective relationships. The Veteran indicated that he resided in a home with his wife and children but preferred to remain in the bedroom with the doors locked (otherwise he would become hostile and angry) and had a minimal relationship with his son. VA treatment records show the Veteran was often treated by the suicide prevention team. Furthermore, and most recently, a VA treatment records shows a possible marital discord with no interest in mending the disconnect. Therefore, resolving any doubt in favor of the Veteran, the Board grants an increased rating of 70 percent prior to February 18, 2020. However, the Board finds that the evidence is against assigning a 100 percent rating for the Veteran’s MDD with persistent depressive disorder (dysthymia). He has not had symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place or memory loss for names of close relatives; own occupation or own name; or symptoms of a similar nature, severity, of frequency. Despite having reported severe symptoms such as frequent suicidal ideations, this does not rise to a level warranting a 100 percent rating disability because, although he has described ways of how he would execute his suicidal ideations, there is no indication of any overt attempt or intent during the period on appeal. With regard to occupational impairment, the Veteran currently has a TDIU only from February 28, 2018. The Veteran stated that his PTSD has a significant impact on his occupational functioning; he reported that his depression, anxiety, insomnia, moodiness, lack of motivation, anger, irritability, panic attacks, and isolation makes it very difficult to get past the interview process. He stated that when he inquired why he was not offered an occupational position, he was told that he seemed drunk, incoherent, listless, and incapable of performing tasks of the job satisfactorily. See July 2017 VA 21-4138. However, the Veteran reported at his September 2017 Board hearing that he was terminated from his last full-time position in 2010 due to fraud. Therefore, total occupational impairment due solely to his PTSD is not shown. Accordingly, while the Veteran has shown substantial social and occupational impairment, the evidence does not demonstrate total social and occupational impairment. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against assigning a rating higher than 70 percent for the Veteran’s MDD with persistent depressive disorder (dysthymia), the doctrine is not for application. See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an earlier effective date prior to February 28, 2018 for the grant of TDIU is denied. The effective date provisions for awards of increased disability compensation include a general rule which is that an award based on a claim for increase of compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110 (a). The corresponding VA regulation expresses this rule as “date of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400 (o)(1). For increased rating claims, if the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date as of which it is ascertainable that the increase occurred as long as the claim for the increased disability rating was received within a year of the date that the increase occurred. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997); Quarles v. Derwinski, 3 Vet. App. 129, 134-135 (1992). A TDIU claim is treated as a claim for increased compensation, and the effective date rules for increased compensation apply to the TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Under the applicable regulations, a TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Under 38 C.F.R. § 4.16, if there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For purposes of TDIU, disabilities of common etiology will be considered a single disability. Id. In this case, the Veteran filed his application for TDIU in September 2012. However, he filed a claim for a psychiatric disorder in August 2013 and employability was raised in connection with that claim as well. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The RO granted a TDIU based on the Veteran’s service-connected disabilities from February 28, 2018. The Veteran contends that an earlier effective date for a TDIU is warranted. The Veteran is service-connected for MDD with persistent depressive disorder (dysthymia), rated as 70 percent disabling, from August 12, 2013, and obstructive sleep apnea with persistent daytime hypersomnolence, rated as 50 percent disabling, from June 13, 2010. As such, prior to February 28, 2018, the Veteran meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU during the period he has reported unemployability as a result of his service-connected disabilities. Thus, the next question for consideration is whether his service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment. VA’s General Counsel has concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In discussing the unemployability criteria, the Court, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated in essence that the unemployability question, i.e., the ability or inability to engage in substantial gainful activity, must be looked at in a practical manner, and that the thrust of the inquiry was whether a particular job was realistically within the capabilities, both physical and mental, of the Veteran involved. In this case, the Veteran completed high school and took some college courses but did not receive any additional degrees or certificates. In his September and December 2012 VA 21-8940, the Veteran indicated he last worked full-time as a radiation technician in April 2010. The Veteran also reported that he was unable to secure employment due to his sleep condition and has tried applying to McDonald’s with no luck. The Veteran stated he sought vocational rehabilitation, but that his counselors believed future employment would be difficult due to his condition. See December 2012 VA 21-4138. A March 2013 VA examiner opined that the Veteran’s sleep apnea did not impact his ability to work. In June 2013, Dr. J.P.G opined the Veteran was unable to maintain a normal daily work schedule due to ongoing symptoms of daytime excessive sleepiness and that accommodations for this limitation were appropriate when available. See September 2013 CAPRI. A July 2013 VA 21-4192 demonstrated the Veteran worked for Bartlett Nuclear from March 2008 to May 2008 and was terminated due to a reduction in force. In a September 2013 correspondence, the Veteran referenced the June 2013 opinion from Dr. J.P.G. He reported that following service, he worked many temporary jobs because he was never given the opportunity to work full time positions due to his disabilities. He stated that he has never partied, smoked, or drank alcohol because it would affect his sleep and stability. He reported that he was terminated from a job on the very first day due to his narcolepsy in 1999. He also reported the inability to socialize due to falling asleep during conversations and detailed several instances where he was caught asleep on the job. The Veteran stated that he had been transparent with potential employers about his sleep condition, but it cost him employment opportunities, even from jobs that would not be considered gainful employment. In his September 2013 VA 21-8940, the Veteran reported that he became too disabled to work in August 2013 and marked the box indicating that he did not lose his job due to his disability. In a September 2013 correspondence, the Veteran detailed different positions with DOE. He stated that one of the positions required over 100 miles of commuting which led him to use the address of a friend in order to collect per diem for his travel expenses. Following an audit, a year later, the Veteran pled guilty to fraud. A private opinion from Dr. J.G.F. dated November 2013 indicated the Veteran was being treated by Dorn VA primary care and had no medical conditions that would prevent him from gainful employment. See October 2013 Medical Treatment Record. SSA records in October 2013 noted the Veteran’s work-related restrictions based on his sleep disorder and fatigue but denied benefits because he was deemed able to perform work in his field within the national economy. An October 2013 VA counseling narrative report demonstrated the Veteran’s reports of constant fatigue due to his service-connected disability and that he was often too tired to function. The counselor found the Veteran was unemployed and had limited transferrable skills and no post-secondary degree. The counselor also found the Veteran met the criteria for employment handicap due to the service-connected disability and had not overcome the effects of such impairment through further education, transferrable skills, or maintaining suitable work. His impairments included neuropsychiatric condition, severity of disabled condition(s), long periods of unemployment, withdrawal from society, extent and complexity of rehabilitation services needed, and lack of education/training. A January 2014 vocational report demonstrated continued efforts to help the Veteran obtain his vocational goals within the information technology (IT) field. His service-connected disabilities were noted to be stable. A June 2014 VA examiner did not opine on the functional effects of the Veteran’s psychiatric condition in an occupational setting. In a January 2015 statement, the Veteran reported he worked full time jobs before entering service but had been unsuccessful in obtaining full-time positions within the past 35 years. He stated that he got few calls back due to his deteriorating condition. In a March 2015 addendum opinion from Dr. J.P.G., he indicated the Veteran asked him to make a statement about his employability based on limitations due to his mental disorders. He opined that based on his February 2015 evaluation and present impressions, the Veteran’s mental disorders and their severity included major depression (mild to moderate); PTSD (mild to moderate); anxiety disorder (mild to moderate); and somatoform disorder (moderate). Dr. J.P.G noted that somatoform and excessive concerns with physical and mental health were adding severity to the Veteran’s own perceptions of his objectively based mental disorder status, and that prognosis for improvement in depression and anxiety was fair to good depending on compliance with treatment but that PTSD was more likely long-term with fair prognosis. A May 2015 SSA denial letter again detailed the Veteran’s service-connected impairments to include depression, sleep apnea with hypersomnia, and PTSD. SSA found the Veteran had functional capacity to perform a full range of work with some limitations. The Veteran reported he was able to count change, pay bills, shop, do yard work, take his daughter to school, take online vocational courses, and care for his homeschooled son. More notably, the Veteran reported he was fired from his last full-time position due to per diem fraud. As noted above, in a letter dated September 2016, Dr. D.S. indicated he was the Veteran’s psychiatric doctor. He opined that the Veteran was noted to have marked social impairment and significant side effects from current and past medication regimens, and would likely only be able to offer volunteer services in the future but would be unable to maintain or sustain any type of occupation for an extended period of time due to his service-connected conditions. In a July 2017 statement, the Veteran reported that his PTSD had a significant impact on his occupational functioning; he reported that his depression, anxiety, insomnia, moodiness, lack of motivation, anger, irritability, panic attacks, and isolation made it very hard to get past the interview process. He stated that when he inquired why he was not offered an occupational position, he was told that he seemed drunk, incoherent, listless, and incapable of performing tasks of the job satisfactorily. At his September 2017 Board hearing, the Veteran stated that he last worked as a health physics technician in April 2010 and was terminated due to fraud. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, after careful review of the evidence of record, the Board finds that the weight of the competent and credible evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful employment prior to February 28, 2018. The Board accepts as credible the Veteran’s assertions that his service-connected disabilities have impacted his ability to engage in substantially gainful employment and acknowledges the Veteran’s efforts in seeking vocational assistance. However, as indicated above, the March 2013 VA examiner did not find the Veteran’s sleep apnea impacted his ability to work. Although Dr. J.P.G offered a positive opinion in June 2013 regarding the Veteran’s sleep apnea and unemployability, he did not offer a sufficient opinion with a supporting rationale regarding the Veteran’s psychiatric condition and unemployability in his March 2015 statement. Likewise, Dr. S noted that the Veteran was only be able to volunteer but did not provide sufficient rationale for the opinion. Moreover, SSA records continued to deny a finding between the Veteran’s service-connected disabilities and unemployability. In fact, the SSA examiners found the Veteran still had functional capacity to perform a full range of work with some limitations despite his health impairments. The Board also notes the Veteran’s continued vocational assistance and enrollment in educational courses. Lastly and more notably, the Veteran reported on his SSA application for benefits and September 2017 Board hearing that he was terminated from his last full-time employment in April 2010 as a result of per-diem fraud and not due to his service-connected disabilities. Therefore, the Board is unable to conclude that the Veteran’s service-connected disabilities, prior to February 28, 2018, significantly impaired the Veteran’s ability to obtain or sustain gainful employment based on the evidence of record. (Continued on the next page)   In sum, after careful review of the evidence of record, the Board finds that there is no basis upon which to justify granting an effective date earlier than February 28, 2018, for an award of TDIU. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o). The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable and the claim is denied. 38 U.S.C. § 5107. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, 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.