Citation Nr: 21001872 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-13 099 DATE: January 12, 2021 ORDER Entitlement to a 70 percent rating, but not higher, for posttraumatic stress disorder (PTSD), is granted subject to controlling regulations applicable to the payment of monetary benefits. Prior to August 16, 2015, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. Effective August 16, 2015, entitlement to a TDIU is granted subject to controlling regulations applicable to the payment of monetary benefits. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s PTSD more nearly approximated occupational and social impairment with deficiencies in most areas; however total social and occupational impairment has not been shown. 2. Prior to September 13, 2016, the Veteran was service connected for the following disabilities: PTSD rated 50 percent disabling prior to November 19, 2011, and 70 percent disabling thereafter; lumbar spine disability rated 20 percent disabling prior to September 13, 2016, and 40 percent disabling thereafter; left lower extremity (LLE) radiculopathy rated 10 percent disabling effective December 17, 2012; right lower extremity (RLE) radiculopathy rated 10 percent disabling effective December 17, 2012; tinnitus rated 10 percent disabling effective August 27, 2015; and, hearing loss rated noncompensable. 3. Prior to August 16, 2015, Veteran’s service-connected disabilities, either individually or through their combined-effect thereof, did not preclude him from securing and following a substantially gainful occupation. 4. Effective August 16, 2015, after resolving reasonable doubt in his favor, the Veteran was unable to secure and follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. Effective November 19, 2011, the criteria for a 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. Prior to August 16, 2015, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 3. Effective August 16, 2015, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to June 1977 and from September 2005 to November 2006. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by a Department of Veterans Affairs Regional Office (RO). In a July 2018 decision, the Board denied a rating in excess of 50 percent for the Veteran’s service-connected PTSD. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2019 Order, the Court vacated the Board’s July 2018 decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). In pertinent part, the JMR found that the Board erred by failing to adequately explain its conclusion that the November 2013 VA examination report showed mild to moderate impairment in light of conflicting conclusions present in that report. The JMR also found that the Board failed to provide an adequate statement of reasons or bases as to whether the medical evidence established that the Veteran was diagnosed with a neurocognitive disorder separate from his service-connected PTSD, and, if so, whether such symptoms were separate and distinct from the service-connected PTSD. The JMR further found that the Board should address entitlement to a TDIU for the period between November 2012 and May 2017. The Board notes that a May 2017 rating decision had granted entitlement to a TDIU effective September 13, 2016. In November 2019, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain a VA PTSD examination. In addition, the Board noted discrepancies in the Veteran’s variously filed VA Forms 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and requested the AOJ to contact the Veteran to clarify the dates of his last full-time employment and the service-connected disability or disabilities he attributed to his unemployability. As discussed more fully below, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. PTSD The Veteran filed an increased rating claim for his service-connected PTSD disability on November 19, 2012. Therefore, the earliest possible effective date available for an increased evaluation for PTSD is November 19, 2011; one year prior to the claim for an increased rating. Turning to the evidence of record, the Board notes that in December 2013, the Veteran submitted a March 2011 letter from Dr. Hoeper who noted that he had treated the Veteran since April 2007. Dr. Hoeper noted that the Veteran currently experienced nightmares at least 2 to 3 times per week and that he would wake in a panic and in sweats. The Veteran was also noted to have flashbacks and occasional panic attacks. In addition, Dr. Hoeper noted that the Veteran occasionally had intrusive thoughts, startled easily and sometimes became hypervigilant. Recent memory was noted as severely impaired such as forgetting what he had read, often misplacing things, forgetting what he had been told and occasionally getting lost while driving. Working memory was noted as 75 percent impaired. Dr. Hoeper further noted that the Veteran heard his name being called, cars driving up to his home 2 times per week, and noises in his home 1 to 2 times per week. The Veteran was also noted to see shadows moving out of the corner of his eye as well as seeing animals 2 to 5 times per week. Other symptoms noted included feeling hopeless, being easily angered and agitated, and crying spells. Due to his PTSD, the Veteran was found severely compromised in his ability to sustain social relationships and that he was severely compromised in his ability to sustain work relationships. A January 2013 private treatment record shows the Veteran reported weekly nightmares, night sweats, flashbacks, panic attacks, and broken sleep. The Veteran also reported daily visual hallucinations. The Veteran was found alert and fully oriented. His short term memory was noted as mildly impaired. Thought process was linear and goal-directed. With regard to insight and judgement, the Veteran was noted as aware of his problem, understood facts, was able to draw conclusions and problem solve. The Veteran was also noted as irritable. See Private Treatment Records Received April 2015. The Veteran underwent an initial psychiatric assessment at his VA medical center in March 2013. A prior July 2009 VA medical record was noted as negative for a neurocognitive screen. The Veteran reported that he resided with his spouse of 39 years. He also reported that he had no friends. The Veteran was found to have normal speech and his behavior cooperative. His mood was noted as slightly anxious. The Veteran denied any paranoid ideation, but he did report almost daily visual and auditory hallucinations. He also denied any suicidal or homicidal ideations, or any past suicide attempts. He was found alert and fully oriented. See VA Medical Records Received January 2017. In April 2013, a private treatment record shows the Veteran reported weekly nightmares, night sweats, panic attacks, and broken sleep. The Veteran also reported daily visual and auditory hallucinations. Short term memory was noted as worse. See Private Treatment Records Received February 2017. A June 2013 VA mental health record noted the Veteran was alert and oriented to place, person and situation. He was causally groomed. Speech was goal-directed with decreased volume and normal rate. The Veteran reported daily visual and auditory hallucinations. He denied any suicidal or homicidal ideations. See VA Medical Records Received January 2017. A July 2013 private treatment record noted the Veteran was alert and fully oriented. His short term memory was noted as better. Thought process was linear and goal-directed, and with regard to insight and judgement, the Veteran was noted as aware of his problem, understood facts, was able to draw conclusions and problem solve. The Veteran reported weekly nightmares and panic attacks, with broken sleep. He also reported that he rarely had visual or auditory hallucinations. In October 2013, the Veteran reported weekly nightmares, night sweats, panic attacks, and broken sleep. In addition, he reported occasional visual and auditory hallucinations. See Private Treatment Records Received February 2017. The Veteran underwent a VA PTSD examination in November 2013. The examiner noted a diagnosis for PTSD. No other psychiatric disorder was diagnosed. The Veteran was noted to be a poor historian. The Veteran’s PTSD was found manifested by 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 medication. The Veteran reported that over the past several years, it had been difficult for him to work because he became very uncomfortable dealing with the public and he also began getting reprimands from his supervisors. He reported that he thought he might lose his job due to his interpersonal problems. In addition, he reported feeling fairly close to his mother and siblings, having been married since 1973, and that he had one son and two daughters. He also reported difficulty staying asleep, frequent nightmares and that he would wake up in cold sweats. He reported hypervigilance and being easily startled. He also reported irritability, difficulty concentrating and having intrusive thoughts. The examiner noted the following symptoms: depressed mood; suspiciousness; chronic sleep impairment; mild memory loss; flattened effect; irritability or outbursts of anger; difficulty concentrating; hypervigilance; exaggerated startle response; difficulty understanding complex commands; and, difficulty in adapting to stressful circumstances, including work or a worklike setting. In addition, the Veteran reported having had some passive suicidal thoughts in the past, but denied any current suicidal or homicidal ideation. The examiner noted no evidence of hallucinations or delusions. A January 2014 private treatment record noted the Veteran was cooperative but easily distracted. He was also noted as alert and fully oriented. Thought process was found linear and goal-directed, and with regard to insight and judgement, the Veteran was noted as aware of problem, understood facts, and able to draw conclusions. The Veteran reported weekly nightmares, panic attacks and broken sleep. He also reported monthly night sweats. In addition, he reported weekly visual and auditory hallucinations. In October 2014, it was noted that the Veteran was cooperative, alert, able to concentrate, and fully oriented. Thought process was linear and goal-directed. The Veteran was noted as able to draw conclusions, problem solve, understood facts and was aware of his problem. The Veteran reported broken sleep and weekly nightmares, panic attacks, flashbacks and night sweats. He also reported daily visual and auditory hallucinations. An April 2015 private treatment record noted that the Veteran was cooperative, easily distracted, alert and fully oriented. Thought process was linear and goal-directed. The Veteran was noted as able to draw conclusions, problem solve, understood facts and was aware of his problem. The Veteran reported broken sleep, weekly nightmares, panic attacks and night sweats, and occasional flashbacks. He also reported daily visual and auditory hallucinations. See Private Treatment Records Received February 2017. The Veteran submitted a March 2015 letter in April 2015, in which he stated that he could no longer maintain full time employment due to an inability to maintain his focus on the smallest job related function. The Veteran also reported that he recently was unable to maintain a part-time job. He also reported that it was becoming harder for him to maintain the ability to remember names and directions. In this regard, the Veteran stated that he relied more and more on written reminders left by his spouse. In addition, the Veteran reported sleep deprivation and anger issues, and that his symptoms were hurting his relationships with others. The Veteran underwent another VA PTSD examination in August 2015. The examiner noted a diagnosis for PTSD and unspecified neurocognitive disorder. In addition, the examiner noted that it was possible to differentiate which symptoms were attributable to each diagnosis. In this regard, the examiner noted that the Veteran’s PTSD was characterized by persistent re-experiencing of traumatic events, avoidance, negative cognitions, numbing and hyperarousal. His cognitive disorder was characterized by impairment of memory, attention, concentration, and cognitive difficulties processing speech which impaired his social and occupational functioning. The Veteran’s psychiatric disorder was found manifested by total occupational and social impairment due mainly to his neurocognitive disorder. The Veteran reported that he stopped working at a liquor store because he could no longer deal with customers walking behind him. The Veteran reported that he had experienced a reduction in his nightmares, insomnia and panic attacks. He did report an increase in his memory problems. He denied any change in his marital, social or family history since his last VA examination, although he did report some marital strain and overall poor family functioning. He denied any suicidal ideations. The examiner noted the following symptoms: depressed mood; anxiety; mild memory loss; impairment of short and long term memory; speech intermittently illogical, obscure or irrelevant; difficulty in understanding complex commands; impaired judgement; 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 worklike setting; irritable behavior and angry outbursts; problems with concentration; and, sleep disturbance. The examiner also noted that the Veteran was well-groomed, cooperative and fully oriented. Speech was spontaneous, articulate and easily understood. There was no evidence of hallucinations or delusions. His attention and concentration were found poor, and immediate memory good. He denied any past suicidal, or any present suicidal or homicidal ideation. The examiner found the Veteran to be a somewhat reliable historian. An April 2016 private treatment record shows the Veteran reported broken sleep and weekly panic attacks and flashbacks. He denied having nightmares or night sweats. He also reported weekly visual and auditory hallucinations. The Veteran was found cooperative and easily distracted, alert and fully oriented. Thought process was linear and goal-directed. The Veteran was noted as able to draw conclusions, problem solve, understood facts and was aware of his problem. See Private Treatment Records Received February 2017. At an October 2015 VA PTSD examination, the Veteran was diagnosed with PTSD and unspecified neurocognitive disorder. With regard to the Veteran’s diagnosed neurocognitive disorder, the examiner noted associated symptoms including difficulty concentrating, impaired memory and possible poverty of thought which were found separate and distinct from his PTSD diagnosis. The examiner further stated that it was unclear if the Veteran met the full criteria for any of the specifically outlined neurocognitive disorders due to the lack of valid cognitive test results, overlapping impairment with the Veteran’s PTSD, and his own lack of insight into the problem. The examiner indicated that it was not possible to differentiate what symptoms were attributable to each diagnosis. Additionally, the examiner noted that the Veteran presented as somewhat suggestible more than purposefully malingering his mental health symptoms. Additionally, the examiner stated that the Veteran’s mental health symptoms appeared best categorized as mild to moderate and resulted in notable impairment in daily functioning, although he appeared to function generally quite well and had some meaningful interpersonal relationships. In this regard, the Veteran reported having a good relationship with his spouse, son and granddaughters, a good relationship with his mother and siblings, that that he had some limited social interactions. The Veteran also reported enjoying several activities including maintaining his car, watching cars drive by, and watching western shows. The Veteran also reported that he worked for the same company for 37 years but that he had to take an early retirement due to physical pain affecting his leg, hip and back. In addition, the Veteran reported that having panic attacks when he was worked, that he saw shadows, and that seeing people coming up behind him caused him to have sweats. Panic attacks reportedly occurred 3 to 4 times per day with each episode lasting 2 to 3 minutes. The Veteran further reported being somewhat isolated, experiencing some anxiety when unable to control his environment, difficulty concentrating with memory problems impacting his independence, and trouble understanding complex commands. The examiner concluded that with regard to employment, that the Veteran would experience some difficulty as outlined with the impairments related to his cognitive disorder. The following symptoms were noted: suspiciousness; mild memory loss; hypervigilance; problems with concentration; impairment of short and long term memory; difficulty in understanding complex commands; and, impaired abstract thinking. The Veteran was noted to have presented with good hygiene and grooming, normal speech, logical and organized thought processes, and no evidence of delusional thought content or hallucinations. The Veteran denied any suicidal ideations. The Veteran’s psychiatric disorder was found manifested by 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. A February 2016 VA medical record shows the Veteran reported feeling sadness, anxiousness and stress. The Veteran also completed a Depression, Anxiety and Stress Scale evaluation which revealed moderate depression, extremely severe anxiety and moderate stress. See VA Medical Records Received April 2017. An April 2016 private treatment record shows the Veteran reported broken sleep and weekly nightmares, panic attacks, flashbacks and night sweats. He also reported weekly visual and auditory hallucinations. He reported that his depression was worse. The Veteran was noted as cooperative and easily distracted, alert and fully oriented. Thought process was linear and goal-directed. The Veteran was noted as able to draw conclusions, problem solve, understood facts and was aware of his problem. In October 2016, the Veteran reported broken sleep and daily nightmares, occasional panic attacks, and weekly flashbacks and night sweats. He also reported monthly visual and auditory hallucinations. The Veteran was noted as cooperative and easily distracted, alert and fully oriented. Thought process was linear and goal-directed. The Veteran was noted as able to draw conclusions, problem solve, understood facts and was aware of his problem. See Private Treatment Records Received February 2017. At a February 2017 VA examination, the examiner noted a diagnosis for PTSD. No other mental disorder was diagnosed. The Veteran’s PTSD was found manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that he argued with his spouse all the time, and that she did not see things he saw that were going on. He also reported getting along well with his son, that he sometimes saw his granddaughter, but that he had little contact with his sibling. He further reported having a friend who he saw irregularly and who drove him to appointments. Symptoms reported included sleep deprivation, fighting in his sleep, fatigue, loss of interest in activities he used to enjoy, difficulty staying focused even for short periods of time, forgetting to complete tasks, memory problems such as remembering names of family members, hypervigilance, suspiciousness, inability to complete household tasks, hopelessness, helplessness, worthlessness and guilt. The Veteran also reported audio and visual hallucinations such as seeing shadows and hearing mumbling voices. In addition, the Veteran reported panic attacks at least once or twice per peek, and social isolation. The examiner noted the following symptoms: depressed mood; anxiety; suspiciousness; irritable behavior and angry outbursts; hypervigilance; exaggerated startle response; problems with concentration; panic attacks more than once a week; chronic sleep impairment; mild memory loss; memory loss for names of close relatives, own occupation or own name; circumstantial, circumlocutory or stereotyped speech; speech intermittently illogical, obscure or irrelevant; 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; suicidal ideation; obsessional rituals which interfere with routine activities; and, persistent delusions or hallucinations. VA medical records dated November 2017, April and September 2018, and, January and September 2019, show that the Veteran was found fully oriented, with speech fluent, and that he had normal affect. See VA Medical Records Received July 2020. The Veteran last underwent a VA PTSD examination in January 2020. The Veteran was diagnosed with PTSD. No other psychiatric condition was diagnosed. The Veteran’s PTSD was found manifested by occupational and social impairment with reduced reliability and productivity. The following symptoms were noted: depressed mood; anxiety; suspiciousness; irritable behavior and angry outbursts; hypervigilance; exaggerated startle response; problems with concentration; chronic sleep impairment; disturbances of motivation and mood; and, difficulty in establishing and maintaining effective work and social relationships. The Veteran’s speech was noted to be within normal limits, and he was found fully oriented. No evidence of psychotic thinking was found. His thought content, abstractions and thought processing were found intact, and insight and judgment fair. The Veteran denied any current or past suicidal or homicidal ideations. He reported having periods of evident mood difficulties in his marital and parental environment, including being distant, disengaged and isolative. He was noted as socially isolative and that he had minimal social contacts. The examiner opined that the Veteran’s symptoms, including symptoms previously noted as separately related to his PTSD and neurocognitive disorder, appeared to be encapsulated solely in his PTSD disorder. In support of this finding, the examiner noted the prior historic diagnoses, but at present, the Veteran did not evidence any cognitive decline or deficits, and that all deficits appeared by be a result of his PTSD. The examiner did note that the Veteran had a propensity to malinger his symptoms, and that he was not considered a reliable historian. Therefore, the examiner stated that his symptoms should be taken in the context of his medical records. In this regard, the examiner noted that the Veteran’s private treatment records revealed symptoms of continued re-experiencing trauma, avoidance reactions, hyperarousal, high startle response, hypervigilance, poor sleep patterns, trouble concentrating, pessimism, feeling the world was a dangerous place, loss of interest in activities, low moods, and feeling detached from others. The Veteran currently denied any suicidal ideation. In addition, with regard to the Veteran’s reported audio and visual hallucinations, the examiner found that the Veteran did not appear to suffer from a psychotic illness. Specifically, the Veteran’s thought process was found logical and goal directed, and it was determined he endorsed symptoms that did not exist, and of attempts to exaggerate his symptoms. A February 2020 VA medical record noted the Veteran was alert and fully oriented. Lastly, in May 2020, the Veteran was noted to have clear speech and mentation, answered questions appropriately, was well oriented and communicated well. See VA Medical Records Received July 2020. The Veteran’s service-connected PTSD has been rated pursuant to 38 C.F.R. § 4.130, DC 9411. Pursuant to DC 9411, a 50 percent rating is assigned for a psychiatric disorder manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is assigned for a psychiatric disorder manifested by 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), or an inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is assigned for a psychiatric disorder manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process 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 list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. If the evidence shows that the veteran 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 v. Principi, 16 Vet. App. 436 (2002); Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). After a review of the evidence of record, the Board finds that, effective November 19, 2011, an increased 70 percent disability rating, but no higher, is warranted. In this regard, symptoms noted during this period on appeal included persistent visual and auditory hallucinations; symptoms contemplated by a higher 100 percent rating. The record also shows symptoms of near continuous panic and depression, speech intermittently illogical, obscure or irrelevant, obsessional rituals which interfere with routine activities, impaired impulse control, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective work and social relationships; symptoms specifically contemplated by a higher 70 percent rating. Other symptoms noted during this period on appeal included nightmares, panic attacks, chronic sleep impairment, impaired memory, impaired abstract thinking, sadness, depression, anxiety, suspiciousness, hypervigilance, difficulty concentrating, exaggerated startle response, and difficulty understanding complex commands. Although the November 2013, October 2015 and January 2020 VA examiners concluded that the Veteran’s PTSD did not more nearly approximate occupational and social impairment with deficiencies in most areas, the January 2020 VA examiner stated that it would be more appropriate to consider the Veteran’s symptoms in the context of his medical records. In this regard, a review of the Veteran’s private treatment records and VA medical records show that he consistently reported persistent hallucinations, which, as noted above, is a symptom specifically contemplated by a higher 100 percent rating. In consideration of the Veteran’s hallucinations as well as numerous symptoms noted that are specifically contemplated by a higher 70 percent rating, the Board finds that evidence of record demonstrates that during the period on appeal, the Veteran’s PTSD more nearly approximated an increased 70 percent rating. The Board further notes that the Veteran’s symptoms have been shown to be present since March 2011. See March 2011 Letter from Dr. Hoeper. Therefore, the Board finds that an effective date of November 19, 2011, one year prior to the November 2012 claim for an increased rating, is warranted. The Board has also considered a higher total 100 percent disability rating during the period on appeal. In this regard, the Board recognizes the January 2020 VA examiner’s conclusion that symptoms previously noted as separately related to his PTSD and neurocognitive disorder appeared to be encapsulated solely in the PTSD disorder and that no separate diagnoses were necessary. The Board further recognizes the August 2015 VA examiner’s finding that the Veteran’s neurocognitive disorder was manifested by total occupational and social impairment. However, despite the above findings, the Board finds that a rating in excess of 70 percent is not warranted. In this regard, throughout the period on appeal, the Veteran’s PTSD has not been shown to have been manifested by symptoms such as gross impairment in thought processes or communication, grossly inappropriate behavior, intermittent inability to perform activities of daily living, or disorientation to time or place. Instead, the Veteran has routinely been found fully oriented and he has routinely denied any suicidal or homicidal ideation. The Board does recognize the February 2017 VA examination report which noted memory loss for names of close relatives, own occupation or own name, a symptom contemplated by a higher 100 percent rating. However, the Board concludes that this finding to be an anomaly. In this regard, neither of the VA examination reports or private or VA treatment records, either before or after the February 2017 VA examination, note a memory loss disability of such severity. Instead, the January 2020 VA examiner who was specifically tasked with determining whether the Veteran had a cognitive disorder, which would encapsulate a memory disorder, found no evidence of any cognitive decline or deficits. Accordingly, in consideration of the medical evidence as a whole, the Board finds that the Veteran does not have symptoms of a memory disorder that more nearly approximates a higher 100 percent disability. Moreover, in order to meet the criteria for a total 100 percent rating, total social and occupational impairment is needed. However, throughout the period on appeal, the Veteran has not been shown to be totally socially impaired. In this regard, as noted more fully below, the Veteran is shown to have been employed until August 15, 2015, and he reported being called back to work part time until April 2016. Additionally, during his October 2015 VA examination, the Veteran reported having a good relationship with his spouse, son and granddaughters, a good relationship with his mother and siblings, and that he had some limited social interactions. The Veteran also reported enjoying several activities including maintaining his car. A February 2017 VA examination shows the Veteran reported getting along with his son, that he sometimes saw his granddaughter, and that he had a friend he saw irregularly and who drove him to appointments. While the Board does recognize the January 2020 VA examination report which shows the Veteran reported having periods of evident mood difficulties in his marital and parental environment, including being distant, disengaged, socially isolative and having minimal social contacts, such reports indicate intermittent and not total social impairment. Additionally, as noted above the January 2020 VA examiner found the Veteran to be an inaccurate historian and to be malingering his symptoms and concluded that his symptoms more nearly approximated occupational and social impairment with reduced reliability and productivity at that time. Instead, the Board notes that the majority of the Veteran’s symptoms are specifically contemplated by rating criteria other than total occupational and social impairment. Therefore, absent evidence of symptoms more nearly approximating total occupational and social impairment, a higher 100 percent disability rating is not warranted. In sum, the Board finds that, effective November 19, 2011, a higher 70 percent evaluation, but no higher, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.130; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. TDIU As noted above, with regard to the issue of entitlement to a TDIU, the only issue before the Board is the issue of entitlement prior to September 13, 2016. 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. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 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 or 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). During the pendency of the appeal, the Veteran has been service connected for the following: PTSD rated 50 percent disabling prior to November 19, 2011, and 70 percent disabling thereafter; lumbar spine disability rated 20 percent disabling prior to September 13, 2016, and 40 percent disabling thereafter; LLE radiculopathy rated 10 percent disabling effective December 17, 2012; RLE radiculopathy rated 10 percent disabling effective December 17, 2012; tinnitus rated 10 percent disabling effective August 27, 2015; and, hearing loss rated noncompensable. The Board notes the Veteran has met the schedular rating criteria as of November 19, 2011 (the effective date of the increased 70 percent rating for PTSD). The evidence of record includes a March 2013 VA medical record showing the Veteran reported working as a manager of a liquor store. See VA Medical Records Received January 2017. A July 2013 private treatment record also shows the Veteran currently worked at a liquor store. An October 2013 private treatment records reflects that the Veteran reported that he was going to retire. See Private Treatment Records Received February 2017. The Board notes that based on his date of birth, the Veteran turned 59 in 2013. In October 2014, a private treatment record noted that the Veteran had retired the prior July, but that he was currently working part-time (15-20 hours per week) at the liquor store. Additionally, an April 9, 2015 private treatment record noted the Veteran worked part time from July 2014 to April 2015. It was noted that the Veteran left because he could not tolerate the people and management. See Private Treatment Records Received February 2017. The Veteran also submitted a March 2015 letter on April 9, 2015, in which he stated he could no longer maintain full time employment due to an inability to maintain his focus on the smallest job related function. The Veteran also reported that he recently was unable to maintain part-time employment, and that it was becoming harder for him to maintain the ability to remember names and directions. In this regard, the Veteran stated that he relied more and more on written reminders left by his spouse. In addition, the Veteran reported sleep deprivation and anger issues, and that his symptoms were hurting relationships. In a September 2015 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, signed by the Veteran’s employer, a state government entity, it was noted that the Veteran worked as a store manager from October 1977 to July 1, 2015, and that he last worked on August 15, 2015. A September 2015 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, shows the Veteran reported that he last worked in July 2014. The Veteran underwent a VA PTSD (noted in the section above) and lumbar spine examination in October 2015 in connection with his TDIU claim. The examiner was asked to opine whether the Veteran’s lumbar spine and PTSD conditions precluded his ability to work. The Veteran reported that his service-connected lumbar spine disability and PTSD precluded his ability to work. With regard to his lumbar spine disability, the Veteran reported that if he did any yard work, or stood or sat for too long, he would not be able to move. He also reported difficulty putting on socks, that he could not walk without a cane, that he could not sit for too long without moving positions, and that his pain worsened if he stood for too long. The Veteran also reported that he retired from managing a liquor store in July 2015. With regard to the claim for TDIU, the examiner found that, as it related to his PTSD, the Veteran would likely experience some difficulty mostly due to his cognitive impairment. In this regard, the Veteran was noted to have difficulty with concentration, memory and understanding complex commands. The examiner further noted that with regard to the Veteran’s lumbar spine disability, he would need accommodations to meet his limitations due to an inability to walk for more than 75 yards, stand for more than 10 minutes, an inability to climb more than 1 flight of stairs, an inability to push, pull or lift more than 10-15 pounds, an inability to run, and the need for frequent breaks when doing any physical tasks. The examiner further opined that the Veteran would need accommodations due to a need to move about due to his RLE radiculopathy, frequent breaks for his back, an inability to sit in one position for over an hour, and tasks that did not involve bending at his waist. Finally, the examiner noted that the Veteran’s lumbar spine disability would result in missing days of work when flare-ups precluded his ability to ambulate. During a December 2015 VA audiological examination, the Veteran reported that his service-connected bilateral hearing loss impacted his ability to work due to an inability to hear and understand. His tinnitus was not found to impact his ability to work. An April 2016 private treatment record shows the Veteran reported that he was recently called back to work part-time. See Private Treatment Records Received February 2017. A January 2017 VA Form 21-8940 shows the Veteran reported that he became too disabled to work in July 2015. Lastly, a VA Form 21-8940 submitted in February 2017 shows the Veteran reported that he last worked in June 2015. After a review of the evidence of record, the Board finds that entitlement to a TDIU is warranted effective August 16, 2015; the day following his last day of employment. In this regard, the evidence of record indicates the functional impairments caused by his service-connected disabilities prevented the Veteran from obtaining or maintaining an occupation involving physical labor as his service-connected disabilities made it difficult for him to lift objects over 10 pounds or to work on his feet for a normal workday. In addition, the Board finds that the service-connected disabilities have been shown to have prevented the Veteran from following a substantially gainful occupation as the evidence of record indicates his service-connected PTSD resulted in difficulty concentrating, impairment of short and long term memory and possible poverty of thought, difficulty understanding complex commands, irritability or outbursts of anger, difficulty in adapting to stressful circumstances, including work or a worklike setting, and difficulty in establishing and maintaining effective work and social relationships. The Board finds that the combined persistent functional effects would have likely prevented the Veteran from being effectively supervised, from being able to sustain the focus and attention needed to learn necessary skills, or to complete a full, productive work schedule in a substantially gainful occupation. As noted above, this matter was remanded in November 2019 due discrepancies in the Veteran’s variously filed TDIU applications. In a November 2019 letter, VA requested the Veteran complete and return VA Form 21-4192 to be completed by his employer. The Veteran was also requested to complete and return another VA Form 21-8940. A review of the record shows the Veteran did not respond to these requests for additional information concerning his claim for TDIU. The Board notes that the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the absence of cooperation from the Veteran in development of his claim, the Board can only piece together his employment history through various statements made during the period on appeal. Notably, the question of employability is ultimately a legal one, not a medical one. While the Board acknowledges the Veteran’s variously listed last days of employment, including July 2014, in the absence of the Veteran’s cooperation, the Board finds the September 2015 VA Form 21-4192 signed by his state government employer the most probative evidence of record as to the date his employment ended. Accordingly, prior to August 16, 2015, TDIU is precluded as the Veteran has not been shown to have been unable to secure or maintain gainful employment during that period on appeal. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (proof of unemployment is necessary to raise a TDIU claim). Effective, August 16, 2015, entitlement to a TDIU is warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.