Citation Nr: 21001004 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 13-21 730 DATE: January 6, 2021 ORDER From June 3, 2006, to June 20, 2017, a disability rating of 70 percent, but not higher, for the service-connected mental disability is granted. Prior to June 3, 2006, a rating higher than 50 percent for the service-connected mental disability is denied From June 3, 2006, to June 20, 2017, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. Prior to June 3, 2006, TDIU is denied FINDINGS OF FACT 1. From June 3, 2006, to June 20, 2017, the service-connected mental disability was manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. Prior to June 3, 2006, the service-connected mental disability was manifested by occupational and social impairment with reduced reliability and productivity. 3. From June 3, 2006, to June 20, 2017, the schedular criteria for TDIU were met; and, the combined service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation. 4. Prior to June 3, 2006, the schedular criteria for TDIU were not met; and, the combined service-connected disabilities did not render the Veteran unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. From June 3, 2006, to June 20, 2017, the criteria for a disability rating of 70 percent for the service-connected mental disability were met; the criteria for a rating of 100 percent were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2019). 2. Prior to June 3, 2006, the criteria for a disability rating of 70 percent for the service-connected mental disability were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2019). 3. From June 3, 2006, to June 20, 2017, the criteria for TDIU were met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2019). 4. Prior to June 3, 2006, the criteria for TDIU were not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from August 1967 to August 1970, and from November 1970 to August 1972. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2020 decision of the United States Court of Appeals for Veterans Claims (Veterans Court). The appeal originates from a June 2010 rating decision, and from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2015, the Veteran testified at a Board hearing, chaired by the undersigned Veterans Law Judge, sitting at Washington, D.C. At the Board hearing, the Veteran was informed of the basis for the RO’s denial of his claims and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. A transcript of the hearing is associated with the claims file. In October 2015, the Board remanded this appeal for additional evidentiary development. The Board also granted an earlier effective date for service connection for PTSD, denied an increased rating for hypertension, and denied service connection for a bilateral shoulder disorder. The Board’s decision with respect to those claims is final. See 38 C.F.R. § 20.1100 (2019). In July 2019, the Board granted TDIU since June 20, 2017, denied a rating higher than 50 percent for the service-connected mental disability prior to June 20, 2017, denied a rating higher than 70 percent for the service-connected mental disability since June 20, 2017, denied a rating higher than 20 percent for the service-connected diabetes mellitus, and remanded the claim of entitlement to TDIU for the period prior to June 20, 2017 for extraschedular referral. The Veteran appealed that decision to the Veterans Court. In an Order dated in July 2020, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board’s decision in part, and remanded the rating claim for the service-connected mental disability for the period prior to June 20, 2017, to the Board for development consistent with the Joint Motion. The Board’s decision/remand regarding the other issues was not disturbed. The issue of entitlement to extraschedular TDIU for the period prior to June 20, 2017, having been denied on remand, is now returned to the Board. Increased Rating—Law and Regulations Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. 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). In the process of evaluating a psychiatric/mental disorder, VA is required to consider a number of pertinent factors, such as the frequency, severity, and duration of a veteran’s psychiatric symptoms and the veteran’s capacity for adjustment during periods of remission. After consideration of these factors, and based on all the evidence of record that bears on occupational and social impairment, VA must assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering rather than based solely on the examiner’s assessment of the level of disability at the moment of 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 an evaluation solely on the basis of social impairment. See 38 C.F.R. § 4.126. The VA Secretary, acting within his authority to adopt and apply a schedule of ratings, chose to create one General Rating Formula for Mental Disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, the VA Secretary anticipated that any list of symptoms justifying a particular rating would, in many situations, be either under- or over-inclusive. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. This construction is consistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The schedular criteria incorporate the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. §§ 4.125, 4.130. The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Psychiatric disorders are to be rated on the severity, frequency, and duration their respective signs and symptoms. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2019). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert at 54. Entitlement to a rating higher than 50 percent for the service-connected mental disability for the period prior to June 20, 2017. The current appeal arises from a claim of entitlement to service connection for PTSD which was received by VA on October 27, 1997. The claim was denied at the RO in August 1998. In an April 2010 decision, the Board reopened the claim and remanded it for additional development. In a June 2010 decision, the RO granted service connection for PTSD and assigned a rating of 50 percent under Diagnostic Code 9411, effective September 29, 2006. The Veteran appealed as to the effective date. In an October 2015 decision, the Board granted an effective date of October 27, 1997, for the grant of service connection, based on additional service department records received after the initial denial. This grant was implemented by a November 2015 rating decision. In an October 2018 rating decision, an increased rating of 70 percent was granted, the effective date for the increased rating was June 20, 2017. Under the schedule for rating mental disabilities, a 0 percent rating is warranted where a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is warranted for PTSD if 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 rating is warranted for PTSD if 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, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if it is productive of 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 compete 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, may be assigned 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 work-like setting); and inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent rating contemplates 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 9411. A March 1998 VA Examination reveals that, following his return from the service, the Veteran had started digging ditches and worked his way up to management level for over 17 years at the same company. Then this company began downsizing and he experienced a lot of anxiety and stress from it. Then he had sustained injury wherein he broke the bones in his ankle, and he became disabled and not able to return to work. As a result, he became very frustrated, stressed out, and was experiencing increased depression and anxiety. It was noted that the Veteran gets agitated easily and he was paranoid and suspicious of people. He reported interrupted sleep due to nightmares. It bothers him to be around loud noises and he does not want to be around children if possible. He had not worked since May of 1996 when he had sustained an injury to his toes. On examination, the Veteran was casually attired and appearing neat and well-groomed. The Veteran was anxious distressed and upset about the evaluation. He was visibly shaken, and he broke down during the evaluation. There was no evidence of acute psychotic symptoms. His mood was very anxious irritable and depressed. He denied any acute suicidal ideations or intent; however, he expressed a tremendous sense of frustration and sense of helplessness and hopelessness. He denied any homicidal thoughts but admitted it does not take much for him to go into rages and he can be potentially violent. His cognitive functions were within normal range. His memory for past and remote memories was adequate, however his recent and immediate recall was poor, and his concentration and attention span were limited and easily distracted. His insight and judgment were fair and his coping abilities are limited (Record 03/31/1998). An employment feasibility assessment conducted in August 2006 notes that the Veteran has significant physical and psychiatric disabilities that could interfere with his ability to function and sustain employment on a full-tune basis. The Veteran has a history of multiple disabilities and presented with a somewhat disorganized mental state. Prior to that he had been working as a forklift operator/shipping receiving clerk. He stated that he was able to hide his disability and brain disorder from his employer but after he was hospitalized, he was let go. At the evaluation, he presented with a depressed affect and he showed some symptoms of anxiety. He had multiple disabilities including diabetes, renal cystitis, degenerative disc disease, hypertension, organic brain disease, and depression. His conditions caused severe symptoms and he lives in considerable pain and distress. He was somewhat tangential, had some difficulty providing history and concentrating and attending to questions. He was administered the Beck Depression Inventory which yielded a score of 40, which indicates some moderate to severe depressive symptoms, some of which are secondary to pain and his physical conditions. He had difficulty sleeping, which left him feeling fatigued and tired during the day. He had limited motion of the right ankle and lumbar spine with numbness and pain. He stated he has significant limitations due to his physical and mental conditions. His disability stemmed from both physical and psychiatric conditions. The following functional limitations were noted: inability to sit, stand, or walk for prolonged periods; decreased memory and concentration secondary to organic brain syndrome; hypersomnia and decreased concentration during the day; limited motion of the lumbar spine and right ankle; chronic depression and anxiety; intermittent non-reactive suicidal ideation; labile mood with limited social skills; self-isolation and social withdrawal; severe chronic fatigue. In the opinion of the examiner, the Veteran was totally disabled and likely to be unemployable into the foreseeable future (Record 08/07/2006 at 26). According to records from the Social Security Administration (SSA), the Veteran became too disabled to work on June 3, 2006. A December 11, 2006, Disability Evaluation (R. Lucey, MD) reveals the Veteran has a GED and has worked with heavy equipment for about 7 years. He was terminated from his job because of neck pain (Record 04/10/2007 at 129). A December 2006 SSA psychiatric review indicates that the Veteran’s psychiatric impairments were not severe (Record 04/10/2007 at 135). An April 2007 psychiatric assessment by the Social Security Administration (SSA) reveals the following restrictions due to psychiatric impairment: for restriction of activities of daily living: “None”; difficulties in maintaining social functioning: “None”; difficulties in maintaining concentration, persistence or pace: “Moderate” (Record 03/26/2007 104). The ability to remember locations and worklike procedures: “Not significantly limited”; the ability to understand and remember very short and simple instructions: “Not significantly limited”; the ability to understand and remember detailed instructions: “Moderately limited”; the ability to carry out very short and simple instructions: “Not significantly limited”; the ability to carry out detailed instructions: “Moderately limited; the ability to maintain attention and concentration for extended periods: “moderately limited”; the ability to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances: “Not significantly limited”; the ability to sustain an ordinary routine without special supervision: “Not significantly limited”; the ability to work in coordination with or proximity to others without being distracted by them: “Not significantly limited”; the ability to make simple work-related decisions: “Not significantly limited”; the ability to complete a normal work day and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods: “Not significantly limited”; the ability to interact appropriately with the general public “Not significantly limited”; the ability to ask simple questions or request assistance “Not significantly limited”; the ability to accept instructions and respond appropriately to criticism from supervisors “Not significantly limited”; the ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes: “Not significantly limited”; the ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness: “Not significantly limited”; the ability to respond appropriately to changes in the work setting: “Not significantly limited”; the ability to be aware of normal hazards and take appropriate precautions: “Not significantly limited”; the ability to travel in unfamiliar places or use public transportation: “Not significantly limited”; the ability to set realistic goals or make plans independently of others: “Not significantly limited” (Record 03/26/2007 108). Basic memory processes were intact. The Veteran could perform work in a stable environment. He was capable of working within a work schedule and at a consistent pace. He would be able to maintain regular attendance and be punctual. Also, the claimant would not require special supervision in order to sustain a work routine. There were no restrictions in abilities to socially interact and adapt. The claimant was able to meet the basic mental demands of competitive work on a sustained basis despite the limitations resulting from any impairment (Record 03/26/2007 110). A November 2011 VA Mental Disorders Examination reveals a diagnosis of PTSD. The examiner opined that the disorder resulted in occupational and social impairment with reduced reliability and productivity (50 percent criteria). The Veteran had been married for 41 years, but stated he and wife were estranged but he saw his wife on their anniversary. He stated, “we don’t hate each other at all, just can’t cope with relationships like I used to.” He reported seeing his 16-year old grandson frequently, going to his baseball games and golfing together. The Veteran worked for a wholesale grocery distribution center for 17 years. When he left, he was a supervisor. He worked for a wholesale hardware distribution company for a year, then worked at another job for 7 years, drove a school bus for 18 months, and was currently not working. On examination, the Veteran was casually dressed, neatly groomed, and cooperative with the examination. He was alert and oriented to person, place, time, and situation. His mood presented as dysphoric with congruent affect. Speech was spontaneous with regular rate and low volume. Insight and judgment were grossly intact. While not formally tested, concentration and attention were within normal limits, as were remote recent memory. The Veteran denied suicidal or homicidal intent or planning, delusions, or hallucinations. The examiner opined that, from the perspective of the Veteran’s documented and subjectively reported symptoms of PTSD exclusively (i.e., excluding his age and physical health), the Veteran did not currently appear to be unemployable according to VA criteria. Based on the Veteran’s current symptom presentation and level of functioning, he appeared capable of flexibly-scheduled part-time employment with limited stress/responsibility, and minimal interaction with staff and/or customers if applicable. This was based solely on his mental health (Record 06/07/2017 at 394). A private opinion from E. Tripi, Ph.D., dated January 2015 reveals the Veteran has symptoms of difficulty concentrating, bouts of anxiety, short-term memory loss, flashbacks, insomnia, withdrawal, bouts of moderate to moderately-severe depression. These cause severe social, personal, and occupational impairment. Dr. Tripi opined that, from October 27, 1997, through the time the Veteran stopped working in 2006, his symptoms were severe enough to indicate at least a 50 percent rating. Dr. Tripi stated that, it is true that he went off of work in 2006 initially because of a physical injury, but the records indicate that his symptoms became exacerbated around that time. In fact, that is when he was awarded Social Security Disability benefits. At that time, he was having difficulty with occupational and social impairment. There was reduced reliability and productivity. Throughout the Veteran’s records there are indications of no motivation and difficulty completing tasks. He had difficulty with short-term memory as well as impaired judgment. There was difficulty in establishing and maintaining effective work and social relationships as well. Dr. Tripi opined that, as of 2006, he was incapable of obtaining and maintaining substantially gainful employment and became totally disabled solely due to his PTSD. He was starting to have rage attacks just prior to leaving work which affected his ability at the work site. In summary, the Veteran met all the criteria for a diagnosis of PTSD from at least October 27, 1997, when he filed his initial claim. From 1997 until 2006, he was at least at 50 percent disabled. Subsequently, from 2006 until the present, he is totally disabled based on individual unemployability regarding his PTSD alone (Record 12/23/2014). An October 2013 Neuropsychological Assessment reveals Veteran lived alone and was separated from his wife of 40+ years. He exchanged light maintenance work at a public lake recreation center for free rent. He had good relationships with his children and grandchildren and noted several friendships. He does not like crowds and feels he does “better on his own” and limiting social interaction. The Veteran was able to care for his own activities and ambulated independently and with general ease. He was able to drive, shop for needed items, cook light meals, and manage his own finances with ease. He reported his memory was not as good as it used to be and that he is really tired lately. The Veteran denied feelings of suicidal ideation or homicidal ideation. There was no history of suicide attempts, gestures, plans, or strong intent. He stated, “I live for my children and grandchildren, they bring me a lot of joy.” He reported occasional depression that can be fleeting, anxiety, and a lot of irritability lately. On the day of testing, he was mildly irritable, sleepy, and oriented x4. His stated mood was, “Melancholy at best, I’ve been awake most of last night due to being afraid of oversleeping and being late for this appointment.” Affect was dysthymic and lethargic as he rubbed his eyes throughout interview and testing. His speech was clear, coherent, fluent, and relevant. Tone, rhythm, and volume were normal. He was cooperative, attentive, and demonstrated mild interest and fair to poor effort during all the tests administered. During interview and testing, the Veteran maintained appropriate eye contact. What could be gleaned from testing results suggested average verbal abilities, with no indication of long-term memory challenges, and generally average ability to learn newly presented information and retain this information for later use. His processing speed or mental speed was moderately slowed/impaired, and he had difficulty with complex or layered tasks that required abstract reasoning or problem solving. A dementia or cognitive disorder could not be completely ruled out. Diagnoses included cognitive disorder NOS (mild); major depressive disorder moderate without psychotic features, PTSD, bipolar disorder (Record 06/07/2017 at 155). An October 9, 2015, VA Mental Health Note reveals the Veteran’s mood was “Stellar.” He does not let little silly things bother him anymore. Being away from everyone decreases his anxiety and improves his mood. He worries about his family and thinks about that most of the time. Thoughts about hunting will divert his worries. Since he started volunteering, he feels it has been the best thing for his emotional well-being. It keeps him busy. Sleep has improved since he has to get up and do chores. He feels 75% successful with “getting on with my life” (Record 06/07/2017 at 89). The report of a June 2017 VA Examination reveals a diagnosis of PTSD and the examiner’s opinion that the criteria for a 70 percent rating are met. The Veteran had done different jobs throughout his career. He has been a cook, supervising a warehouse, tractor-trailer work, hazardous material technician, and school bus driver. His last job as a school bus driver he had to quit in 2012 due to panic attacks and difficulties interacting with the children. Symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, circumstantial, circumlocutory or stereotyped speech, difficulty in understanding complex commands, impaired abstract thinking, 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, obsessional rituals which interfere with routine activities, impaired impulse control, such as unprovoked irritability with periods of violence, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran was alert and oriented to person, place, situation, and time. The rate of observed speech was unremarkable, and the quality of observed speech was unremarkable. Overall, the content of observed speech was noted to be circumstantial. The Veteran demonstrated fair attention and concentration. Mental flexibility appeared to be adequate as Veteran was able to spell the word “world” backward and complete simple tasks of serial calculations without errors. The Veteran did not display any significant difficulties in processing speed. Receptive language appeared to be adequate as Veteran was able to complete all verbal commands presented without errors and expressive language appeared to be adequate as Veteran was able to complete all written tasks presented without errors. Immediate memory appeared to be adequate as Veteran was able to recall 3 of 3 words immediately after presentation and recent memory appeared to be adequate as Veteran was able to recall 2 of the 3 words presented after a short delay. Remote memory appeared to be adequate as Veteran was able to recall specific details regarding past autobiographical events. The Veteran demonstrated adequate mental computation and was able to complete basic verbal arithmetic problems without errors. The Veteran displayed fair social skills. Abstract reasoning appeared fair. Judgment related to self-care and social problem-solving appeared to be adequate as evidenced by an understanding of personal safety, solution-focused ideas, and social interactions. Insight appeared to be at an age appropriate level based on the clinician’s observations. Overall intelligence was approximated as being average based on the observed vocabulary, usage, and fund of general information. General thought processes appeared to be circumstantial. Thought form and content appeared to be age appropriate and unremarkable. The Veteran denied having any history of suicidal or homicidal attempts and denied having any suicidal or homicidal ideations at the time of the evaluation. The Veteran denied experiencing hallucinations presently or in the past. The Veteran denied experiencing delusions presently or in the past (Record 06/20/2017). VA outpatient treatment records can be summarized as showing an intermittently depressed and/or anxious mood with irritability and difficulty concentrating. However, the Veteran was consistently described as fully oriented, with adequate grooming and hygiene, with generally normal speech, cognition, thought processes, and thought content, with fair judgment and insight, and without evidence of psychosis, hallucinations, delusions, obsessions, compulsions, suicidal ideation, and homicidal ideation. A March 2019 private vocational assessment notes a work history from 1972 to 2006, working for several companies, the longest of which was for a grocery wholesale warehouse for 17 years as a material handler, to include forklift operator. The last five years of this occupation he also worked in the capacity of a supervisor, as well as performing his material handling duties. This job finally ended because he had a flashback regarding Vietnam, which was very disturbing after a shooting took place at his job. From 1974-1975 and again from approximately 1998 -2006, he worked as a forklift operator. This was the last place he was employed full time. The opinion finds that the symptoms and limitations caused by the service-connected PTSD have resulted in the complete inability of the Veteran to perform even sedentary unskilled substantial gainful competitive employment since at least June 2006. The Veteran has a varied past work history with work ranging from medium to heavy with no usable transferable skills due to his severe psychiatric condition. the Veteran’s inability to perform in a work setting without unpredictable bouts of poor concentrations, confusion, depression, low motivation, anger, impulsivity, and hypersensitivity, on a frequent basis would impede the workflow on even an unskilled sedentary job and would be disruptive to an unacceptable degree. The Veteran’s need for frequent breaks and level of being off-task of at least up to as much as 33% would prevent him from meeting pace and production demands. In addition, his chronic sleepless nights and daytime fatigue, together with his panic attacks and intrusive thoughts would cause an intolerable level of absenteeism (Record 03/11/2019 at 8). After a review of all of the evidence, the Board finds that, from June 3, 2006, to June 20, 2017, the criteria for a disability rating of 70 percent were met. However, the criteria for a disability rating of 100 percent were not met. The Board also finds that, prior to June 3, 2006, the criteria for a rating higher than 50 percent were not met. For the period beginning June 3, 2006, it is noted that the Veteran separated from his spouse in 2007. The report of a June 2017 VA Examination reveals that the Veteran had done different jobs throughout his career. However, his work as a tractor-trailer driver, hazardous material technician, and school bus driver, would certainly be impacted by his symptomatology, including panic attacks and stress related to dealing with children. Indeed, he left his last job as a school bus driver in 2012 due to these issues. With resolution of all reasonable doubt in favor of the claim, the Board concludes that there are deficiencies in work, family relations, mood, and judgment prior from June 3, 2006, to June 20, 2017. Thus most areas were impacted. This satisfies the requirements for a rating of 70 percent. As discussed below, a finding of total occupational and social impairment does not equate to a finding that an individual is entitled to TDIU. Entitlement to a rating of 100 percent for a mental disability requires symptoms of the type and degree representative of serious impairments of thought, memory, communication, behavior, and orientation, so as to result in total social impairment and total occupational impairment. Here, the Board finds that the gross impairment of behavior resulting in severe disorientation of the individual, which is contemplated by the 100 percent rating criteria, is simply not evident in this case at any time. The Board acknowledges the agreement of the parties to the Joint Motion that the Veteran had suicidal ideation reported on several assessments. The parties agreed that the record prior to June 20, 2017, contains evidence where the Veteran reported suicidal ideation. (March 1998 VA Examination) (VA examiner noting that the Veteran reports “he has passive thoughts of suicide, but denies any serious plan or intent.”); (July 2006 VA treatment record where the Veteran “mentioned being hospitalized for depression recently” and stated that he had “thoughts of death but no plans to self-harm”); (July 2006 record) (“sometimes has suicidal ideation”); (December 2006 SSA Psychiatric Review noting the Veteran “had thoughts of suicide but did not currently feel this way”); (April 2013 VA note reporting “passive wishes of death”). The parties agreed that, in the decision on appeal, the Board failed to adequately address this relevant evidence. Accordingly, on remand, the parties agreed that the Board must reassess the evidence of record and address all relevant evidence demonstrating a more severe occupational and social impairment, and then provide an adequate statement of reasons and bases addressing whether such symptomatology, to include the documented suicidal ideation, warrants a higher rating. Suicidal ideation is not actually listed under the criteria for a 100 percent rating. While listed as an example of the type and degree of symptoms that may support a rating of 70 percent, it is not strictly a rating criterion, meaning establishing suicidal ideation does not itself substantiate a rating of 70 percent. The criteria for a 100 percent rating include persistent danger of hurting self or others; however, such danger is not evident from the descriptions of occasional suicidal ideation or homicidal ideation, without intent or plan. Indeed, in the context of the criteria for a 100 percent rating, the absence of intent and plan are significant as they impact the determination as to whether there is an actual danger of harm. Here, the evidence does not substantiate a significant danger of self-harm or harm to others. To the extent of suicidal ideation or homicidal ideation, this does not appear to have resulted in any significant degree of functional impairment and, therefore did not significantly impact his social and work situation. This is significant to both the 70 percent and 100 percent ratings. The parties to the Joint Motion found no other faults with the Board’s July 2019 denial of a higher rating for this period. Regarding the period prior to June 3, 2006, the evidence from SSA shows that the Veteran was actually employed prior to this date and was not too disabled to work. Therefore, the Veteran’s service-connected mental disability did not significantly impact his ability to work and there was no significant deficiency in the Veteran’s ability to work during this period. To summarize the Board’s findings of fact, from June 3, 2006, to June 20, 2017, the service-connected mental disorder was manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Total social and occupational impairment was not substantiated. In light of these findings of fact, the Board concludes that a disability rating of 70 percent is warranted for this period; however, a rating higher than 70 percent is not warranted for this period. Additionally, the Board finds that, prior to June 3, 2006, the service-connected mental disability was manifested by occupational and social impairment with reduced reliability and productivity. Therefore, a rating higher than 50 percent was not warranted for this period. To the extent of the denial of a total rating the Board finds that a preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIU—Law and Regulations It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body 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), 4.15. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual’s annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual’s earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent for more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board itself cannot assign an extra-schedular rating in the first instance. The Board’s consideration is limited to whether to refer the case to the Director of Compensation and Pension Service for an extra-schedular evaluation. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (Board may not assign a TDIU in the first instance when the schedular requirements of 38 C.F.R. § 4.16(a) are not met). The Board observes that while entitlement to an extraschedular disability rating under 38 C.F.R. § 3.321(b)(1), and entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b), are similar, they are based on different factors. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). A TDIU on an extraschedular basis merely requires a determination that a particular Veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disability or disabilities. See VAOPGCPREC 6-96. Entitlement to a TDIU an extraschedular basis requires that the Veteran show that service connected disability or disabilities precludes substantially gainful employment; whether the veteran can work in his or her preferred or current position is not the standard. Moreover, VA may find that a veteran is physically capable of substantially gainful employment even if he or she is not currently engaged in such employment. In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an “objective” one based on the average industrial impairment or a “subjective” one based upon the veteran’s actual industrial impairment. In a pertinent precedent decision, the VA General Counsel opined 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. Entitlement to TDIU prior to June 20, 2017. In light of the grant of an increased rating above, service connection is now in effect for a mental disability, rated at 70 percent from June 3, 2006, to June 20, 2017, for diabetes mellitus, rated at 20 percent, and for hypertension, rated at 10 percent. The combined rating prior from June 3, 2006, to June 20, 2017, is 80 percent. Thus, the schedular criteria for TDIU under 38 C.F.R. § 4.16(b) are met for his period. Prior to June 3, 2006, the combined schedular rating is 60 percent, which does not meet the criteria for a TDIU. A November 2011 VA Diabetes Examination reveals the Veteran’s diabetes was managed by oral hypoglycemic agents and did not require regulation of activities. He required diabetic care visits less than twice a month and had no episodes of hypoglycemia or ketoacidosis requiring hospitalization over the past year. He had no loss of strength or unintended weight loss. The Veteran had no complications of diabetes mellitus. There were no functional limitations (Record 06/07/2017 at 367). After a review of all of the evidence, the Board finds that the criteria for TDIU were met prior from June 3, 2006, to June 20, 2017, but were not met prior to that period. The primary factor in the Board’s determination is the Veteran’s mental disability. Persuasive evidence comes from the June 2017 VA examination. This examination forms the basis for VA’s determination of the effective date for the 70 percent rating. As discussed above, the Veteran’s work involves occupations requiring expertise and concentration, as well as a significant level of responsibility. Such characteristics are inconsistent with symptomatology to include panic attacks, anxiety, suspiciousness, memory loss, difficulty in understanding complex commands, difficulty in adapting to stressful circumstances, and impaired impulse control, such as unprovoked irritability with periods of violence, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. These symptoms were all found to be present on the June 2017 examination. The Board acknowledges that there is significant evidence that conflicts with the assessment of the June 2017 examiner as to the presence of the noted symptoms. However, the Board will resolve this contradictory evidence in favor of the claim. Regarding the period prior to June 3, 2006, the evidence from SSA shows that the Veteran was employed during this period. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans’ Claims (Veterans Court) held that where an individual became employed at a substantially gainful occupation, irrespective of the number of hours or days that individual actually works and without regard to his earned annual income prior to his having been awarded TDIU, such employment constitutes, as a matter of law, a substantially gainful occupation and thus “actual employability” for the purposes of 38 C.F.R. § 3.343(c)(1). Accordingly, the Board finds that, prior to June 3, 2006, the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. In sum, the Board finds that, from June 3, 2006, to June 20, 2017, the schedular TDIU criteria were met, in light of the Board’s determination to grant an increased rating for the service-connected mental disability during that period. The Board further finds that the Veteran’s combined service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation during that period. However, prior to June 3, 2006, the schedular criteria for TDIU were not met; and, the combined service-connected disabilities did not render the Veteran unable to secure or follow a substantially gainful occupation. Therefore, TDIU was not warranted prior to June 3, 2006, and the requirements for extraschedular referral were not met. To the extent of the denial of a TDIU for the period prior to June 3, 2006, the Board finds that a preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.