Citation Nr: 21001526 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 09-46 278 DATE: January 8, 2021 ORDER From December 23, 2007 to December 2, 2013, entitlement to a 70 percent rating for post-traumatic stress disorder (PTSD) with substance abuse disorders, but no higher, is granted. On and after December 3, 2013, entitlement to a rating in excess of 70 percent for PTSD with substance abuse disorders is denied (exclusive of the periods where a 100 percent rating has been assigned). Entitlement to a 100 percent rating from January 13, 2015 to January 27, 2015, for PTSD, is granted. From December 23, 2007 to December 2, 2013, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the entire portion of the appeal period prior to December 3, 2013, the evidence is in equipoise as to whether the Veteran’s PTSD with substance abuse disorders caused occupational and social impairment with deficiencies in most areas, and his symptoms were not of the severity, frequency, or duration to cause total social and occupational impairment. 2. Beginning December 3, 2013, (exclusive of the periods where a 100 percent rating has been assigned), the Veteran’s PTSD with substance abuse disorders symptoms caused no more than occupational and social impairment with deficiencies in most areas. 3. Beginning January 13, 2015 to January 27, 2015, the Veteran was hospitalized due to service-connected PTSD and his symptoms more nearly approximated the equivalence of total social and occupational impairment. 4. For the entire portion of the appeal period prior to December 3, 2013, the evidence is in equipoise as to whether the Veteran’s service-connected PTSD with substance abuse disorders precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. From December 23, 2007 to December 2, 2013, reasonable doubt is resolved in favor of the Veteran; thus, the criteria for a 70 percent rating, but no higher, for PTSD with substance abuse disorders, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. On and after December 3, 2013, the criteria for a rating in excess of 70 percent, for PTSD with substance abuse disorders, have not been met (exclusive of the periods where 100 percent rating has been assigned). 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. From January 13, 2015 to January 27, 2015, the criteria for a 100 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. 4. From December 23, 2007 to December 2, 2013, reasonable doubt is resolved in favor of the Veteran; thus, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1965 to May 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision. During the pendency of the Veteran’s appeal of the March 2009 rating decision’s denial of his already established increased rating claim for PTSD, the agency of original jurisdiction (AOJ) issued an April 2014 Decision Review Officer (DRO) decision that increased the disability rating for PTSD to 70 percent effective from December 3, 2013. As the assigned evaluations are less than the maximum available rating, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that the Veteran requested a hearing in his May 2011 VA Form 9; however, he withdrew his request in written correspondence received in September 2014. Therefore, the Veteran’s hearing request is deemed withdrawn. This case was previously before the Board in July 2015 and January 2020 and was remanded for additional development in both instances. As remand directives have been substantially complied with, the case has been returned to the Board for further appellate review. Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition to the Veteran’s increased rating claim, the January 2020 Board decision remanded the issue of entitlement to a TDIU. The Board notes that the Veteran’s TDIU claim stemmed from a freestanding claim filed on June 4, 2017 that was denied in an August 2008 rating decision. Following the January 2020 Board remand, an August 2020 rating decision granted entitlement to a TDIU effective from December 3, 2013. The Veteran has not appealed the assigned effective date in relation to his June 4, 2017 freestanding claim for a TDIU, and the Board notes that the appeal period for the August 2020 rating decision has not yet expired. The Board also notes that the Veteran’s increased rating claim for his already established PTSD disability was filed on December 23, 2008; and the appeal period for this claim began on December 23, 2007, one year prior to the date of receipt of his increased rating claim. 38 C.F.R. § 3.400(o)(2). To the extent that a TDIU was not awarded during the entire appeal period for the Veteran’s pending increased rating claim for his PTSD disability, the Board notes that VA must consider whether entitlement to a TDIU should be awarded for the portion of this appeal period prior to December 3, 2013 as part and parcel of the Veteran's claim for entitlement to higher ratings for his psychiatric disability. Harper v. Wilkie, 30 Vet. App. 356 (2018); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also notes that additional VA treatment records dated from August 2020 to November 2020 were received after the August 2020 supplemental statement of the case (SSOC). Although the Veteran has not provided a waiver of the AOJ's initial consideration of this evidence, these additional records provide information that is either duplicative of the prior evidence of record or has no material effect on the outcome of the Veteran's increased rating claim for PTSD. In addition, the Board is granting the Veteran’s claim for a TDIU for the entirety of the appeal period prior to December 3, 2013 herein. As such, the Board finds that a remand for initial AOJ review of this additional evidence is not necessary, and there is no prejudice to the Veteran in proceeding with the adjudication of the claims. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Duties to Notify and Assist Although the Board acknowledges that the Veteran discussed receiving Social Security Administration (SSA) benefits during a June 2008 VA examination from the appeal period, the record reflects that these benefits are supplemental security income (SSI) rather than social security disability income (SSDI). See, e.g., March 2004 Psychological Report. In Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010), the Federal Circuit noted that 38 U.S.C. § 5103A does not require VA to obtain all medical records or all SSA disability records, only those that are relevant to the Veteran's claim. The Court also stated that VA is not required to obtain records in every case in order to rule out their relevance. Rather, the standard is that as long as a reasonable possibility exists that the records are relevant to the Veteran's claim, VA is required to assist the Veteran in obtaining the identified records. The Veteran does not indicate that the SSI records would be relevant to his increased rating claim for PTSD with substance abuse issues, and the evidence of record does not indicate the Veteran is receiving disability benefits from SSA. As such, the Board concludes that the evidentiary record does not establish a reasonable possibility that there are SSA records relevant to the claim on appeal, and it is not necessary to attempt to obtain them before reaching a decision in this matter. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a rating in excess of 50 percent, prior to December 3, 2013, and in excess of 70 percent thereafter, for PTSD with substance abuse disorders. Disability ratings are determined by evaluating 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as, industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "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. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) ("The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim."). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As noted above, the appeal period for the Veteran’s increased rating claim for PTSD begins on December 23, 2007. The Veteran’s PTSD disability has been assigned staged ratings, to include a 50 percent rating for the period prior to December 3, 2013, and a 70 percent rating thereafter, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran is also in receipt of 100 percent ratings for temporary total disability under 38 C.F.R. § 4.29. Diagnostic Code 9411 uses the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 50 percent rating is assigned when a veteran’s psychiatric disorder causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation 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); and inability to establish and maintain effective relationships. Id. The maximum schedular rating of 100 percent 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; and memory loss for names of close relatives, own occupation or own name. Id. The Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Board acknowledges that psychiatric examinations frequently include the assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5) has been officially released, and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. The Court added that it does not hold that the Board commits prejudicial error every time the Board references GAF scores in a decision. As this appeal was initially certified to the Board in September 2014, the DSM-5 criteria apply to this case. Consequently, the Board will not afford any probative value to the GAF scores that are documented in the record. The Board has reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As mentioned previously, the Veteran has been assigned 100 percent temporary total ratings under 38 C.F.R. § 4.29 due to hospitalization over 21 days for the periods beginning from August 3, 2018 to November 30, 2018, and from November 22, 2019 to April 30, 2020. As the Veteran is in receipt of the highest schedular rating available during these periods, a higher rating cannot be assigned for these periods. Therefore, these periods will not be addressed. Thus, the Board will only adjudicate whether higher ratings are warranted for the remaining periods on appeal, to include, the period prior to December 3, 2013, and the periods beginning on December 3, 2013; excluding the periods of temporary total rating. Period prior to December 3, 2013 For the period prior to December 3, 2013, the Board has reviewed the evidence of record and finds that a 70 percent rating is warranted for the entire appeal period. In support thereof, the Board notes that the Veteran received a VA examination for PTSD in June 2008 where his symptoms were described as moderate. In the examination, the Veteran reported being married twice and that he had 7 to 8 children. He reported having a good relationship with his children except for two. The Veteran reported that he attends church and that he stays home a lot and takes care of the kids. Occupationally, the Veteran reported that he has not been employed for many years and that he receives SSA benefits. He indicated that he has worked “on the side to make ends meet.” The Veteran reported having symptoms of sleep impairment, recurrent dreams of being shot, and that he gets upset easily. He also reported having no regular treatment for PTSD but noted that he comes in sporadically for medication. Mental status examination showed the Veteran was appropriately dressed; his attitude was cooperative; and he was oriented to person, place, and time. The examiner noted the Veteran was rambling and was vague. Psychomotor activity appeared restless and his speech was spontaneous. The Veteran’s affect was constricted, and his mood was noted as expansive. There was no evidence of delusions, hallucinations, or obsessive behavior, and remote memory was normal; however, recent memory was described as severely impaired while immediate memory was mildly impaired. The examiner indicated that the Veteran’s PTSD symptoms caused moderate impairment and concluded that his symptoms caused occupational and social impairment with an occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks. Despite the examiner’s finding of moderate impairment, the examiner also found that the Veteran’s prognosis was poor, which is consistent with the evidence as it shows the Veteran experienced periodic increases in symptoms throughout the appeal period. For example, in a March 2008 psychiatric visit, the Veteran reported that he was currently not doing well. He reported that he lost his medication in January and that he has been off since then. He further reported having increased nightmares and flashbacks, and that he was not sleeping well. The Board notes that it appears the Veteran was offered hospital admission at that time as the treatment note indicated the Veteran declined “vol hosp” because he has to take care of his children. Mental status examination showed the Veteran was cooperative, but he appeared thin and disheveled. His mood was depressed, and affect was noted as congruent and tearful. Thought process was organized and judgment and insight were fair, and he denied suicidal/homicidal ideations and hallucinations. The Veteran was restarted on medication for depression and PTSD and was referred to the PTSD program for therapy. In a September 2009 psychiatric visit, the Veteran reported that he was not doing well since his son had gone to Afghanistan. He reported feeling depressed, anxious, and having more nightmares. He further reported having difficulty with anger, irritability, and more intrusive thoughts about Vietnam as his son is in active duty. The examiner noted a positive screen for marijuana and cocaine, which the Veteran admitted using marijuana two times a week but denied using cocaine. He declined substance abuse treatment. Mental status examination showed the Veteran’s mood was depressed; thought process was linear and goal-directed; however, thought content was noted to include symptoms of intrusive thoughts and hypervigilance. There were no suicidal/homicidal ideations, and insight and judgment were noted as fair. The Veteran was restarted on Zoloft for PTSD and was given an additional medication for nightmares. In a June 2010 VA examination, the Veteran reported that he has nightmares and flashbacks about three times a week, associated with nervousness and depression. He reported poor concentration, frequent irritability, short temper, trouble sleeping, guilt, anger, and feelings of isolation. The Veteran stated that he avoids crowds, noises, war movies, activities or situations that will arouse recollection of his traumatic Vietnam experiences. However, thought process, insight, and judgment were intact, and the Veteran denied hallucinations, and no homicidal or suicidal ideas elicited. The examiner found that the Veteran’s symptoms caused moderate to severe impairment in his social and industrial adaptability, and that he is unable to work because of his PTSD symptoms. The examiner further found that his depressive symptoms are part and parcel of his PTSD symptoms. Treatment records from 2010 appear to show improvement in the Veteran’s symptoms as he requested a referral to a psychiatrist in October 2010 and completed 16 weeks of group therapy. However, a May 2011 note shows the Veteran ran out medications four weeks prior, and he reported feeling bad the past two weeks. Although medications were restarted at that time, he subsequently reported problems with sleeping, nightmares, anger, and more frequent flashbacks in a July 2011 mental health visit. He denied suicidal/homicidal ideations but stated that he has had thoughts of hurting others in the past few weeks. The Veteran was referred to a psychiatrist for further evaluation. Other records which show evidence of severe impairment include a December 2011 treatment record which shows the Veteran called the crisis hotline and reported having nightmares about his friends that died in Vietnam and economic issues. It was noted that the Veteran was tearful throughout the call and stated several times that he “just needs help.” Moreover, an August 2012 psychiatric note shows the Veteran reported having suicidal thoughts for several days in the last couple of weeks; and a subsequent August 2012 treatment record shows the Veteran contacted the crisis hotline again and reported frequent nightmares, flashbacks, and possible dissociative episodes. The Veteran denied suicidal ideation but reported that he has thoughts of harming others that he feels have betrayed him or members of his family. The Board notes that the Veteran’s symptoms were again described as moderate in a January 2013 psychiatric note; however, the examiner increased the Veteran’s medication after he reported being worried about his son’s deployment. In addition, the Veteran was subsequently hospitalized for an increase in symptoms related to PTSD in April 2013. Based on the above, the Board finds the evidence is in equipoise as to whether a higher rating is warranted. As explained above, the evidence shows the Veteran exhibited PTSD symptoms of moderate impairment at times, particularly with the help of medication, while other evidence shows periods of severe impairment as evidenced by the Veteran’s reports of increased symptoms of nightmares, flashbacks, sleep impairment; restarting and changes in his medications; and ultimately hospitalization. Therefore, as the evidence is in relative equipoise, the Board resolves all doubt in favor of the Veteran and finds that a 70 percent rating is warranted for the entire appeal period prior to December 3, 2013. Accordingly, the claim for a higher rating is granted. However, a rating greater than 70 percent is not warranted as the evidence does not show that the Veteran’s PTSD symptoms caused total social and occupational impairment. The Board notes that while the evidence shows the Veteran experienced severe symptoms at times, his increase in symptomatology primarily occurred during times when the Veteran was not taking medication. Otherwise, the Veteran reported that he goes to church and takes care of his children. He also completed 16 weeks of treatment from 2010 to 2011, and a March 2011 treatment note shows the Veteran reported that he was trying to use the skills he learned after reporting a break-in to his home. The Board recognizes that the June 2010 VA examiner found that the Veteran could not work due to PTSD which may suggest total impairment; however, the examiner’s finding was rendered without having reviewed the Veteran’s medical records as the examiner noted that the Veteran’s c-file was requested but was not received. Therefore, this opinion is given low probative value. In addition, the June 2008 VA examiner found otherwise and concluded that the Veteran’s symptoms caused no more than moderate impairment. Moreover, the Veteran reported that he has worked “on the side to make ends meet.” Further, the Veteran’s VA examinations and his periodic mental health visits show that the Veteran has consistently denied delusions, hallucinations, and suicidal/homicidal ideations. The Board notes, however, that the Veteran reported suicidal/homicidal ideations in 2011 and 2012, but these reports were not of the severity, frequency, or duration that would warrant a total rating. As noted above, in his July 2011 mental health nurse evaluation, the Veteran reported having thoughts of hurting others in the past few weeks, but he denied suicidal/homicidal ideations. The Veteran was subsequently evaluated by a psychiatrist and was not deemed a risk to himself or others. Rather, the examiner modified his medications and recommended substance abuse treatment. Similarly, in an August 2012 mental health visit the Veteran reported suicidal ideations; however, he was not determined to be a suicide risk. Instead, the examiner noted the Veteran was excited about the prospect of finding some of his friends from Vietnam and described his condition has moderate. In a subsequent August 2012 treatment record, it was noted that the Veteran contacted the crisis hotline and reported that he has thoughts of harming others; however, the Veteran denied suicidal ideation and he was not determined to be a threat to others as the telephonic note indicated the Veteran was much calmer at the end of the call and the Veteran planned to do some gardening, which he reported was relaxing for him. The Board also notes that in a follow-up call from a suicide prevention coordinator the next day, the Veteran explained that he was overwhelmed with emotion after thinking about his last night in Vietnam. His wife also stated that the Veteran denied any suicidal ideation and “just gets upset with memories.” The Board recognizes that the Veteran was hospitalized in April 2013 for homicidal ideations; however, this did not amount to total impairment. In his mental assessment prior to being admitted, the Veteran explained that he got into a fight two nights ago and was concerned about what he might do if he was left on his own. He reported that he was “stressed and depressed,” and that he relapsed and came to the VA at the urging of a police officer he knew. The Board notes that the Veteran was ultimately diagnosed with PTSD and polysubstance abuse, and while his substance abuse has been associated with his PTSD, the evidence does not show the Veteran was totally impaired due to PTSD or substances. In this regard, the Board particularly notes that although the Veteran was encouraged to get help, he nonetheless recognized the need for help and sought the assistance of VA on his own volition, which is evidence that the Veteran did not exhibit gross impairment in thought processes. Moreover, his initial mental assessment showed the Veteran was alert and oriented x 4. He was appropriately dressed and appeared reasonably clean and well-kempt. The Veteran’s mood was “frustrated,” and affect was reactive and congruent to his mood; however, the Veteran’s behavior was cooperative. Thought process was logical and goal-directed; insight and judgment were fair; there were no delusions or hypervigilance; and he denied hallucinations. He also denied suicidal/homicidal ideations during his assessment and continued to deny the same throughout his hospitalization, although he initially reported being homicidal. Further, it was noted that his symptoms were likely exacerbated by substances, as he tested positive for cocaine and increased alcohol consumption; and the Veteran was recommended for discharge after only eight days with recommendations to take his prescribed medication and to follow-up with outpatient psychiatrist and social worker for services. Based on the above, the Board finds that the Veteran did not exhibit total social and occupational impairment to warrant a 100 percent rating during his period of hospitalization or at any time during the appeal period; thus, a 70 percent rating, but no higher, is warranted for the period prior to December 3, 2013. Period beginning December 3, 2013 For the entire appeal period beginning December 3, 2013, the Veteran has been rated at 70 percent disabling for PTSD with substance abuse disorders, with the exception of the two previously identified periods of hospitalizations where he was granted a 100 percent rating under 38 C.F.R. § 4.29. After reviewing the evidence of record, the Board finds a higher rating is not warranted as the Veteran did not exhibit total impairment, except for during an additional period of hospitalization from January 13, 2015 to January 27, 2015, and exclusive of the periods where a temporary total rating has already been assigned. The record shows that the Veteran was granted a 70 percent rating based on findings in his December 2013 PTSD examination as the examiner found symptoms of depressed mood, anxiety, near continuous panic or depression, chronic sleep impairment, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. Although the examiner noted that his symptoms appear to have worsened since being hospitalized in 2012 and 2013, the examiner did not find that his symptoms caused total impairment; rather, the examiner found that that the Veteran’s symptoms cause occupational and social impairment with deficiencies in most areas. Other findings in the examination that support this conclusion include the Veteran’s reports of having a good relationship with his family and being married for three years. Although he reported that they live separately, he indicated that this was his preference and that they see each other daily and have a daughter together. He reported that he pays the bills for both households and they have good family relationships. The Veteran also reported that he continues to receive treatment in the mental health clinic, and he denied current or recent suicidal ideation, plan, or intent. A December 2013 VA treatment record confirms the same as the Veteran reported that his medication helps him. During this evaluation, his depressive symptoms were noted as moderate and the examiner noted an improvement in symptoms likely due to his medication. A March 2014 primary care note also shows the Veteran had a negative depression screen where he denied feeling down, depressed, or hopeless, and he denied having little pleasure in doing things. Additionally, in his May 2016 PTSD examination, the Veteran reported symptoms of flashbacks 2 to 3 times weekly; nightmares 2 times weekly; panic attacks at times, at that he feels uncomfortable in public. The Board finds that these symptoms are not of the severity, frequency, or duration that would warrant a rating greater than 70 percent. In addition, the examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, and difficulty in establishing and maintaining effective work and social relationships; and diagnosed the Veteran with PTSD and severe alcohol use disorder. However, the examiner did not find total social and occupational impairment. Instead, the examiner found that the Veteran’s symptoms cause occupational and social impairment with reduced reliability, which corresponds to a 50 percent rating. Moreover, although the examiner suggested the Veteran’s symptoms may be exacerbated by his alcohol use, the examiner merely noted that the Veteran will be more agitated and less reliable in any work setting due to alcohol abuse. Similarly, in his August 2017 PTSD examination, this examiner also found that the Veteran’s symptoms cause occupational and social impairment with deficiencies in most areas; however, the examiner attributed the Veteran’s increase in PTSD symptoms to familial circumstances as the Veteran reported high levels of stress and that he was feeling threatened due to custody issues. During an October 2018 VA Examination related to PTSD, the examiner stated that the Veteran was being treated for a diagnosis of cocaine dependence after his children were taken away by the Department of Human Services, and this substance use would have caused the Veteran's PTSD symptoms to exacerbate. Although the Veteran reported that he did not sleep well and stayed to himself, the examiner observed that the medical records repeatedly noted that the was resting well in bed with no complaints; and that he was active in recreational activities. His treatment providers also noted that he was doing better and had started takin passes to visit family. As such, the examiner concluded that he appeared to be responding well to treatment. The examiner noted that the Veteran's psychiatric symptoms included anxiety, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner observed that the Veteran was dressed in casual clothing, he was oriented times four, maintained good eye contact, and was in no acute distress. He was not suicidal, and his affect was appropriate. His mood was appropriate, and the Veteran interacted without difficulty. The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. During a subsequent March 2020 VA examination, the Veteran's psychiatric symptoms were noted to include chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; and a flattened affect. He was also found to have symptoms of an impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or work-like setting; and an inability to establish and maintain effective relationships. Other symptoms included anger/irritability. The examiner noted that the Veteran arrived on time to the appointment, and he was casually dressed and appropriately groomed. He was also oriented times four. The Veteran's behavior was noted to be polite and cooperative, and his speech was unremarkable. He reported that his mood was euthymic with an affect consistent with this mood. Although the Veteran described examples of impaired judgement; his judgment, insight, and decision-making appeared to be intact during the examination. The Veteran denied having suicidal ideation. The examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and/or mood. During the period on and after December 3, 2013, the medical and lay evidence has not shown that the Veteran experienced 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; or disorientation to time and place, memory loss for names of close relatives, own occupation, or own name. Here, the evidence of record demonstrates that the impairment caused by the Veteran's psychiatric disability did not more nearly approximate the total occupational and social impairment required for a 100 percent rating under the general rating formula. Notwithstanding the above, the Board recognizes that the Veteran was hospitalized on two occasions during the appeal period for which a total rating was not granted. Although the Veteran does not qualify for a 100 percent rating under 38 C.F.R. § 4.29 since his hospitalization was less than 21 days, the Board finds that a 100 percent rating is warranted for his period of hospitalization beginning January 13, 2015 to January 27, 2015 under the General Rating Formula for PTSD. In this regard, the Board notes that the Veteran was hospitalized on January 13, 2015 to January 27, 2015. During his admission, he reported feeling suicidal and homicidal for the last couple of weeks without a plan. He reported being depressed from having so many problems and that he does not have a purpose in life. He further reported that he feels like he would be better dead than alive. The Veteran stated that he is separated from his wife and children. He indicated he got into an altercation with his brother in laws a couple of weeks ago and was hit on the hand with a two by four and broke his left pinky finger. The Veteran reported that he cannot deal with people and he can’t sleep due to nightmares. The Board observes a physician note that shows the Veteran was admitted due to an increase in PTSD symptoms along with suicidal ideations. It was further noted that the Veteran has been under a lot of stress at home and needs stabilization. The Board also notes that the Veteran’s discharge diagnoses included alcohol abuse and PTSD. While the evidence suggests the Veteran’s hospitalization was multifactorial, to include, family issues, suicidal and homicidal ideations, increased nightmares related to military trauma, and substance abuse, the Board resolves the evidence in favor of the Veteran and finds that his psychiatric disorder more nearly approximated total impairment during this period; thus, a 100 percent rating is warranted for the period beginning January 13, 2015 to January 27, 2015. Alternatively, the Board does not find a 100 percent rating is warranted for his period of hospitalization in June 2017. Here, the evidence clearly shows that the Veteran was hospitalized for nine days as a result of domestic issues and medical problems. In a June 2017 social work note, it was noted that the Veteran was admitted due to suicidal and homicidal ideations, depression, syncopal episodes, and dehydration. The Veteran reported that he was angry and upset that his wife had taken his children. He reiterated the same while being assessed by the attending physician as he explained that his wife took the kids; and, in a June 2017 recreational note, the Veteran reported that he did not want to live if his kids were taken away. These findings were further noted in the Veteran’s August 2017 PTSD examination as the examiner noted that the Veteran’s custody issues led to an increase in his PTSD symptoms. Moreover, the July 2017 discharge summary indicates the Veteran was admitted with suicidal ideation, anxiety, and PTSD symptoms; however, it also noted that his wife was abusing drugs and was not taking care of the children, and that the Veteran had a medical problem which triggered anxiety. Therefore, while the Veteran exhibited an increase in PTSD symptoms, the Board concludes a 100 percent rating is not warranted for the June 2017 period of hospitalization as this was the result of family and medical issues and was unrelated to his military trauma. For the foregoing reasons, the Board finds the preponderance of evidence is against the claim, and a rating greater than 70 percent is not warranted for the period beginning December 3, 2013 (exclusive of the periods where a temporary total rating has been assigned); thus, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. However, a 100 percent rating is warranted for the period beginning January 13, 2015 to January 27, 2015 for the Veteran’s hospitalization. Accordingly, the claim is granted to this extent only. 2. Entitlement to a TDIU prior to December 3, 2013. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58 (2019) the Court clarified that substantially gainful employment contains economic and noneconomic components. The Court 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. Id. at 73. 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. 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). As noted above, the appeal period currently before the Board for the issue of entitlement to a TDIU prior to December 3, 2013 begins on December 23, 2007. As the Veteran has been granted a 70 percent rating for PTSD in the decision herein for the entire period prior to December 3, 2013, he has met the schedular requirements for a TDIU for this period. The Veteran is service-connected for PTSD with substance abuse disorders and residuals of left inguinal hernia repair, postoperative scar with keloid changes in area of paresthesia. However, the Veteran has not asserted, nor is there evidence, that his left inguinal hernia impacts his ability to work. Therefore, this disability will not be discussed further. In addition, the Veteran has already been granted a TDIU in an August 2020 rating decision for the period beginning December 3, 2013. Thus, the question before the Board is whether the Veteran’s PTSD precludes the Veteran from obtaining substantially gainful employment for the period prior to December 3, 2013. After reviewing the evidence, the Board finds that a TDIU is warranted. A review of the evidence shows the Veteran reported that he was unable to work due to PTSD in his January 2007 application for TDIU, VA Form 21-8940. He indicated that he did not remember the name, date, or income of his last employer, and he reported having two years of college with no additional training. However, an August 2008 response from his employer at City Cab shows the Veteran was last employed in 2004. It also noted that he was not employed due to anxiety, depression, and trouble dealing with people. The Board observes the Veteran’s June 2008 PTSD examination in which the examiner found that the Veteran’s PTSD symptoms cause occupational and social impairment with an occasional decrease in work efficiency. While this finding suggests the Veteran’s PTSD symptoms do not impact his employability, the Board notes that the examiner also found that the Veteran’s prognosis was poor. Notably, this conclusion is also supported by the record as evidenced by the Board’s decision herein that found a higher rating was warranted due to the severity of the Veteran’s symptoms. In addition, the examiner in the Veteran’s June 2010 PTSD examination found that the Veteran could not work due to PTSD. The evidence also shows the Veteran has abused alcohol and drugs with few periods of remission, which have resulted in periods of hospitalization. Significantly, his substance abuse has been associated with his PTSD. The Board also observes remarks from the examiner in his March 2020 PTSD examination which noted that “individuals often use substances to manage PTSD symptoms, but substances can in turn exacerbate anxiety, mood, and sleep problems.” The examiner also found that the Veteran’s PTSD likely negatively impacts his work, and the examiner specifically noted that the Veteran’s PTSD symptoms are considered chronic and severe with documentation explicitly noting the chronicity of his symptoms as early as 2011 despite repeated intensive treatment. The Board notes that there is conflicting information as to when the Veteran was last employed as his May 2016 and August 2017 PTSD examinations show that he reported being last employed in 2007. However, other records show he reported being last employed in 2003. Despite the inconsistent dates of employment, the record shows the Veteran has consistently reported that he stopped working due to symptoms related to PTSD. For example, in his June 2010 PTSD examination, the Veteran reported being employed from 1995 to 2003 as a taxi driver and that his PTSD symptoms became worse, which is when he stopped working. During his April 2013 hospitalization, the Veteran reported he stopped working in 2003 because he could not deal with the public anymore; and, in his December 2013 PTSD examination, he reported that he last worked in 2003 because he was having problems dealing with people which escalated into aggressive interactions. Alternatively, in his May 2016 PTSD examination, the Veteran reported that he last worked in 2007; however, his reasoning was the same as he indicated that he was unable to cope with the public, and he was easily agitated and annoyed with customers and bosses. This statement was supported by the examiner’s finding as the examiner noted the Veteran was an alcoholic and would be more agitated and less reliable in any work setting due to alcohol abuse. In his June 2008 PTSD examination, the Veteran reported doing side work; however, the Board finds that this would have been marginal, at best, as there is no other evidence of record that indicates the Veteran was gainfully employed since 2003. (Continued on the next page)   Given these findings, the Board concludes the evidence is in equipoise as to whether the Veteran’s PTSD precluded the Veteran from securing and following gainful employment. Therefore, resolving all doubt in favor of the Veteran, the Board finds a TDIU is warranted for the period prior to December 3, 2013. K.C. SPRAGINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.