Citation Nr: 21003650 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 11-13 224 DATE: January 22, 2021 ORDER Entitlement to an initial evaluation of 70 percent, but not higher, for the period prior to October 12, 2020 for service-connected posttraumatic stress disorder (PTSD) is granted Entitlement to an evaluation in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the period of appeal prior to October 12, 2020, the Veteran's PTSD was productive of a disability picture that more nearly approximates that of occupational and a social impairment with deficiencies in most areas. 2. The Veteran’s PTSD was not productive of a disability picture that resulted in total occupational and social impairment. 3. The Veteran's part-time employment constitutes marginal employment and is not considered substantially gainful employment, even if some of his yearly income exceeds the poverty threshold. 4. The Veteran is unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to October 12, 2020, the criteria for an evaluation of 70 percent, but not higher, for the Veteran’s PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. For the period on appeal beginning October 12, 2020, the criteria for an evaluation in excess of 70 percent for the Veteran’s PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1969 to July 1971. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2011, the Veteran testified at a DRO Informal Conference. In January 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of both hearings transcripts has been associated with the electronic claims file. The Board previously considered this appeal in June 2017 and July 2020 and remanded this issue for further development. During the course of the appeal, the RO increased the Veteran's disability rating for his PTSD from 50 percent to 70 percent, effective October 12, 2020. However, because this award amounts to less than the maximum benefit available for the Veteran's service-connected PTSD, less than the period on appeal and because he has not indicated that he is satisfied with a 70 percent disability rating, the Veteran's increased rating claim for his service-connected PTSD remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39-40 (1993) (holding that a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The case returned to the Board for further appellate review. 1. Entitlement to an initial evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) prior to October 12, 2020 and in excess of 70 percent thereafter Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. § 3.400 (o)(2). PTSD is rated under the General Rating Formula for Mental Disorders (General Formula). A 30 percent evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). This may be due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Code 9411. A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity. This may be 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. Id. A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment. This may be due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms in the General Formula is not intended to constitute an exhaustive list but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." As mentioned above, the Veteran was granted service connection for PTSD in a March 2014 rating decision, rated at 50 percent since October 16, 2007, under the provisions of Diagnostic Code 9411. The Veteran asserts that rating does not accurately depict the severity of his condition. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating in excess of 50 percent prior to October 12, 2020 and in excess of 70 percent, thereafter for his PTSD. Period of appeal prior to October 12, 2020 VA treatment notes from May 2007 shows the Veteran started attending group counseling sessions with noted depressed mood, The Veteran started private counseling in October 2007, when the Veteran reported symptoms of anxiety, depression, decreased appetite, lack of concentration and focus, fatigue and decreased libido and history of alcohol abuse. The Veteran also reported that he has cut back his hours at work to half time as he feels anxious and on edge most of the time, related to his ED and intrusive thoughts about his MST. He was diagnosed with MDD. In an August 2008 note, the Veteran reported PTSD and MDD symptoms of nightmares, triggered reactions, exaggerated startle response, hypervigilance, anger, and depression. In January 2008, the Veteran was afforded a VA examination for PTSD. The examiner diagnosed the Veteran with PTSD and somatoform disorder, which is not otherwise specified, subsequent of a high level of anxiety in relation to PTSD and secondary to it. In a September 2008 statement, the Veteran’s wife stated that the Veteran has gotten much worse since his prostate cancer surgery, that he used to get depressed every once in a while, especially after being reminded of his tour in Vietnam. but now he is depressed all the time, that he wakes up screaming and crying when he has nightmares. She added that when the Veteran is not depressed, he is angry and screams at her for no reason, that he doesn’t want to go out or do anything that he used to do together. In a September 2009 letter from his PTSD Treatment Coordinator, M.R.S., the VA psychologist stated that the Veteran presented with chronic depression and severe PTSD symptoms related to combat and military sexual trauma (MST). He added that the Veteran’s symptoms have drastically impeded his quality of life, self- perception and his ability to trust and interact with others in a meaningful way. Additionally, the Veteran presented with symptoms including intense daily sadness, anhedonia, feelings of emptiness, alienation and loneliness, self-blame and guilt, shame, embarrassment, and social isolation. He also presents with anxiety, avoidant and distraction behaviors, fear of trusting others, intrusive thoughts, insomnia, survivor’s guilt and frequent nightmares. The VA psychologist opined that these symptoms have severely impacted the Veteran’s overall quality of life and ability to function and continue to cause severe emotional distress. In March 2011, the VA psychologist provided an addendum to the September 2009 letter to provide further clarification regarding the Veteran’s diagnosis of PTSD resulting from a sexual assault sustained while on active duty. Additionally, the VA psychologist stated that the Veteran continues in treatment for his PTSD symptoms which continue to impede his functioning. The Veteran also submitted a March 2016 private psychiatric evaluation. Dr. R.W.B. noted that the Veteran has the following symptoms: recurrent, involuntary, intrusive and distressing memories of MST and carrying/moving dead bodies during his military service and that these symptoms have increased from multiple times per week to daily. The Veteran also experience persistent avoidance and several alterations in cognition associated with his trauma. The Veteran reported constant negative emotional states, including fear, anger, guilt, and shame. He has lost interest in participating in significant activities that he used to enjoy, he feels detached from coworkers and has been estranged from most family members for several years. The veteran also reported that he experiences a persistent inability to experience positive emotions, daily, that experiencing happiness or satisfaction has become more difficult since his last review. The veteran also experiences marked alterations in arousal and reactivity associated with the traumatic event such as becoming engaged in non-violent road rage incidents at least once per week the disturbance is causing clinically significant distress an impairment in his social life his occupation as a hotel concierge on interacting with family members. The psychologist noted the Veteran acknowledged recent suicidal ideation and stated that self-destructive behavior is a constant, as he drinks excessive amounts of hard liquor several times a week resulting in blackouts. Relationship with immediate family is becoming more detached, relationship with extended family is estranged and virtually nonexistent, cognition is altered, experiences suicidal ideation, panic attacks, avoidant behavior, intrusive, distressing thoughts and dreams, and insomnia, obsessive compulsive behaviors that interfere with routine activities of daily living, unable to experience pleasant moods, work hours has been drastically reduced from full time to part-time because of impaired communication, and difficulty following directives. The private examiner further noted that Veteran’s level of occupational and social impairment is occupational and social impairment with deficiencies in most areas: work family relations, judgment, thinking and mood. In June 2016, the Veteran submitted a letter from his team leader and therapist, J.Y. Dr. J.Y., stated that he has provided individual and group counseling to the Veteran since 2009 and has continued the therapeutic relationship to the present. He stated that the Veteran continue to re-experience traumatic events from the Vietnam War with severe hyperarousal and social avoidance. He further added that the Veteran’s PTSD symptoms are chronic and severe, including intrusive memories of combat, terrifying nightmares, approximately twice per week, difficulty falling and staying asleep, generalized anxiety and panic attacks, irritability and impulsive rage, poor concentration and memory, hypervigilance, exaggerated startle response, attempts to avoid thinking or talking about the trauma as well as events or locations reminiscent of the trauma, restricted affect and feelings of estrangement and foreshortened future. The psychologist noted that while participating in the Vet Center Program, the Veteran continually endorsed significant reexposure to combat trauma through interaction with other combat veterans adding re-experiencing of his comrade’s traumas to his own. The therapist opined that the Veteran’s symptoms have increased significantly since his last rating. He notes that there is no evidence to suggest that the Veteran will improve sufficiently to return to the competitive lifestyle due to his service-connected PTSD. The therapist further added that the Veteran’s prognosis is severely limited with serious impairment of industrial and social functioning. At his January 2017 Board hearing, the Veteran testified that he experiences depression, nightmares, feels isolated, does not want to go out anywhere, stays at home, have flashbacks of his stressors specially when he hears a helicopter, gets angry for no particular reason, only sleeps 3 to 4 hours, has security issues and gets up at night to check doors, windows, “perimeter type checking”, drinks alcohol five to six times a week. He takes general depression and antipsychotic medication. He testified that he has told to his psychologist about his suicidal ideations and thanked his psychologist to have helped him through that situation. He also testified that he has problems with employment due to his PTSD “because before I was working full time but now, I can only work part time --I only work two days a week. Well sometimes I just can’t make it --I don’t get out of bed --I’m too tired or --so instead of getting fired, uh, they just let me work two days a week.” The Veteran’s brother testified about the Veteran’s rituals at night to make sure his house is locked up and secured and how he can get angry or upset about what most people think is nothing. The Board finds that for this period of appeal, the Veteran's symptoms more nearly approximated that of occupational and a social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, which warrants a 70 percent rating under Diagnostic Code 9411. Most of the Veteran's PTSD symptoms more closely resemble the symptoms listed for a 70 percent rating rather than a 50 percent rating. The Veteran reported suicidal ideation, obsessive rituals, near-continuous depression that affected his ability to function appropriately and effectively at work, difficulty in adapting to stressful work circumstances, and an inability to establish and maintain effective relationships. The Veteran stated that his nighttime ritual of checking his home and barricading himself in his bedroom caused problems with his family. He stated that if he missed something while securing his home then he would go back and recheck everything. The Veteran stated he felt depressed every day. He also stated he used to drink to manage his symptoms and noticed it affected him at work. The Veteran stated he stopped drinking when he was diagnosed with prostate cancer in 2005 and by 2007, the record shows he started drinking again. Throughout his group therapies since 2007, the Veteran was noted to be oriented, lethargic, mood depressed, affect constricted with fair insight and judgment. The Veteran has cut back his hours at work to half time as he feels anxious and on edge most of the time, related to his ED and intrusive thoughts about his MST. Accordingly, and resolving all doubt in the Veteran's favor an increased 70 percent rating is granted for this period. The Board acknowledge that the March 2016 private examiner noted that the Veteran’s PTSD symptoms has increased in frequency, severity and duration since the date of the March 2011 letter from the Veteran’s PTSD treatment coordinator, this was an addendum to a September 2009 letter to provide further clarification regarding the Veteran’s diagnosis of PTSD; the psychologist added that the Veteran continues in treatment for his PTSD symptoms which continue to impede his functioning. A review of the record reflects that a rating in excess of 70 percent is not warranted for this period. There is no evidence of total social or occupational impairment that more nearly approximates a 100 percent disability rating, including due to symptoms such 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, based on review of treatment records, VA and private examination reports, or the Veteran's lay statements. Objective examinations did not demonstrate he had inappropriate dress and grooming. While he reported suicidal ideation, he was never described as a danger to himself or others. Moreover, he could keep working 15 hours a week at his job despite his conflicts with coworkers and supervisors until recently. There is no question the Veteran has severe symptoms; however, these symptoms have never been shown to be so frequent or disabling that the rise to the level of total occupational or social impairment, which is a level of severity so disabling that some of the examples of symptoms include not knowing one's own name or posing a persistent threat of danger to self or others. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that symptoms contained in rating schedule criteria are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating."). Period of appeal beginning October 12, 2020 and thereafter For the appeal period beginning October 12, 2020 and thereafter, the PTSD more closely approximated the criteria for a 70 percent rating and did not more closely approximate the schedular criteria for the assignment of disability rating in excess of 70 percent under Diagnostic Code 9411. The Veteran was afforded a VA examination for his PTSD in October 2020. The Veteran reported having marital issues, that are a result of his depression and PTSD. The examiner noted that his PTSD causes symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Veteran reported that prior to COVID he did not have a social life, however he was able to go to the store. He also reported that he has worked inconsistently since his last DBQ, “I can’t work more than 15 hours per week.” He reported that he enjoys going to work, but has a hard time working with others due to conflict with other employees. He reported that he “tries to stay to himself, but conflict is unavoidable at times.” Due to COVID he has not been working. He describes his conflicts at work as verbal disagreements. Veteran reported that symptoms of PTSD interfere with his work in that he is untrusting of management, difficulty taking instructions, "sound like orders, "triggered at work, and sleep disturbances that affect his work at times. The VA examiner noted that the Veteran’s level of occupational and social impairment is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The VA examiner opined that the Veteran is struggling with maintaining employment due to various symptoms (but not limited to) that interfere with his functioning such as, sleep disturbances, mood disturbances, anger management, conflict with employees at work, recent leave due to conflict, hypervigilance, trust issues, irritable biopsy, recklessness, easily triggered, lack of concentration/fatigue, and inability to regulate emotions. The Board finds that for this period of the appeal, the Veteran's symptoms were not of such frequency and severity to result in total occupational and a social impairment to warrant a 100 percent rating under Diagnostic Code 9411. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). At his most recent VA examination the Veteran even expressed that he saw improvement in some areas. The Veteran indicated that he no longer barricaded the bedroom door at night. He also stated he experienced fewer nightmares. The Veteran stated that he enjoyed group therapy and found it helpful. When comparing the Veteran's VA treatment record notes, the March 2016 private examination and October 2020 VA examination, the Veteran had similar symptoms. The evidence does not show that the Veteran's condition had worsened to total occupational and social impairment. The 2020 examiner noted the Veteran had symptoms of depressed mood, anxiety, sleep disturbances, mood disturbances, anger management, hypervigilance, trust issues, irritable biopsy, recklessness, easily triggered, lack of concentration/fatigue, and inability to regulate emotions, among others. The 2020 examiner did not note any behavioral observations or additional symptoms outside of the established criteria. He stated that the Veteran's mental health issues affect most areas of his life. The Board finds the medical evidence after October 12, 2020, does not show that the Veteran's symptoms increased in frequency and severity to result in total occupational and social impairment to warrant a 100 percent rating. He continued to stay married and had good relationships with some members of his immediate family. He reported that he is struggling with maintaining employment due to various symptoms that interfere with his functioning. This demonstrates that even though he is not able to work full time or maintain sustained gainful employment, he retains some occupational functioning to the point he can perform some work. Therefore, the preponderance of the evidence is against the claim and an increased 100 percent schedular rating for PTSD is denied. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities A total disability evaluation based on unemployability is warranted when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Generally, a total rating for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet the percentage standards if he is unemployable by reason of his service-connected disabilities. If a veteran is found to be unemployable solely due to his service-connected disabilities, then the case is to be referred to the Director of the Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. The issue is whether a veteran’s service-connected disability or disabilities preclude him or her from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a veteran’s service-connected disability or disabilities do not prevent him or her from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). While medical and lay opinions regarding the extent of functional impairment are evidence to be considered, the ultimate factual determination lies with the adjudicator. As an adjudicator may not substitute his or her own opinion for medical judgment, Colvin v. Derwinski, 1 Vet. App. 171 (1991), a medical opinion cannot subvert the responsibility of the fact finder. Moore, supra. Factual Background & Analysis In a June 2017 decision, the Board of Veterans’ Appeals (Board) inferred a TDIU claim as part of an increased rating claim for PTSD and remanded the issue for development. At the January 2012 Board hearing, the Veteran testified that he was working only part-time and earned an annual amount below the poverty level that would qualify him for a TDIU. The Veteran contends that his service-connected disabilities render him unable to secure and follow substantial and gainful employment. During the pendency of his appeal, the Veteran alleged having marginal employment since 2006 when he no longer could hold a fulltime job due to his service-connected disabilities and was accommodated by his employer to work only on a part time basis, 2 days a week and not even every week. See January 2017 Board hearing transcript. The Veteran stated that he was unable to continue to work fulltime on January 1, 2006 and was unable to work at all since December 1, 2019 because his PTSD made it hard to get along with his co-workers and the public and his urinary incontinence made him have to go to the bathroom so often that it caused problems with his supervisors. He also stated that in December 2019, he went on leave from his job at the hotel because he needed a break from the public. He added that he requested leave until April 2020 and that he has not been called back to work and he does not plan to go back to work fulltime if he is called. See July 2020 VA Form 21-8940. While the Veteran formally applied for TDIU in July 2020, his increased rating claim for his PTSD dates to October 2007. However, the Veteran was granted a 100 percent rating for his urinary incontinence, residuals of prostate cancer, effective until March 1, 2008. Because the Veteran is already rated at 100 percent for a single disability until March 1, 2008, the period on appeal begins on March 1, 2008. See Bradley v. Peake, 22 Vet. App. 280 (2008). The Veteran has been service connected for PTSD at 70 percent from October 16, 2007, urinary incontinence, residuals of prostate cancer at 100 percent from September 30, 2005 and 60 percent from March 1, 2008, tinnitus at 10 percent from November 10, 2009, and erectile dysfunction at a non compensable rating from September 30, 2005. His combined disability rating is 100 percent from September 30, 2005, 80 percent from March 1, 2008 and 90 percent from October 12, 2020. Thus, he meets the criteria of 38 C.F.R. § 4.16a throughout the period on appeal. After a review of the evidence of record and after resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected PTSD and urinary incontinence disabilities has prevented him from securing and following substantially gainful employment. As an initial matter, the Board notes the Veteran has provided tax records (W-2 forms) for the years 2007-2019. For the reasons that follow, the Board has determined that the Veteran was engaged in marginal employment throughout the appeal period. During the appeal period, the Veteran’s income fell below or within $1,000 of the poverty threshold for one person as established by the U.S. Department of Commerce, Bureau of the Census. Specifically, the totality of the evidence establishes that the Veteran's part time job constitutes marginal employment. It is not "substantially gainful" employment and he would not be able to work full time or for another employer. Therefore, a TDIU is warranted here based on the Veteran's ability to only work in marginal employment part-time. The record shows that the Veteran has worked as concierge, driver and bellman for the last 15 years at a hotel. On his application for TDIU he reported 2 years of college education with no other education or training. The Veteran’s last employer stated that the Veteran last worked on December 29, 2019 and that he is currently on “inactive” status due to a COVD-19 furlough as of March 31, 2020. See April 2015 VA Form 21-492. VA treatment records show that in August 2007, the Veteran reported that he has cut back his hours at work to half time as he feels anxious and on edge most of the time, related to his ED and intrusive thoughts about his MST. In a March 2016 mental health private examination, the examiner noted that the Veteran’s work hours have been drastically reduced from full time to part-time because of impaired communication, and difficulty following directives. In an October 2020 VA examination for PTSD, the examiner noted that the Veteran's level of occupational and social impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted that his PTSD causes symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran reported that he has worked inconsistently since his last DBQ, “I can’t work more than 15 hours per week.” He reported that he enjoys going to work but has a hard time working with others due to conflict with other employees. He “tries to stay to himself, but conflict is unavoidable at times.” He reported that he was on leave due to conflicts and problems at work and then COVID hit. Due to COVID he has not been working. He describes his conflicts at work as verbal disagreements. Veteran reported that symptoms of PTSD interfere with his work in that he is untrusting of management, difficulty taking instructions, “sound like orders”, triggered at work, and sleep disturbances that affect his work at times. On the impact of the Veteran’s PTSD on his activities of daily living and ability to maintain substantial gainful employment, the VA examiner noted that the “Veteran is struggling with maintaining employment due to various symptoms (but not limited to) that interfere with his functioning such as, sleep disturbances, mood disturbances, anger management, conflict with employees at work, recent leave due to conflict, hypervigilance, trust issues, irritable biopsy, recklessness, easily triggered, lack of concentration/fatigue, and inability to regulate emotions. In an October 2020 VA examination for prostate cancer, the examiner noted on the impact of the Veteran’s prostate cancer on his activities of daily living and ability to maintain substantial gainful employment, that the Veteran’s frequency of urination causes frequent interruptions at work and must be near a bathroom, that he is unable to drive, sit, or stand for prolonged periods, has difficulty with strenuous tasks such as repetitive lifting or moving objects due to urinary leakage. The VA treatment notes, and lay testimony provided by the Veteran is consistent with the private and VA examinations of record. After reviewing all the evidence of record, to include VA treatment records, VA examination reports, and lay statements, the lay and medical evidence is at least in equipoise on the question of whether the Veteran’s combined service-connected disabilities have rendered him totally unemployable for purposes of individual unemployability benefits during the entire period on appeal. The record as a whole reflects that his service-connected disabilities, and specifically his psychiatric condition, have rendered him unable to secure and follow gainful employment. The record reflects he was placed on leave for conflicts with coworkers and during this time realized he is unable to work fulltime again. VA treatment records and his lay and hearing testimony further report that has difficulty dealing with stress and other people making his ability to work with public less likely. Additionally, due to his residuals of prostate cancer he has to go the bathroom so often that cause him troubles with his supervisors. In sum, the Veteran’s service-connected conditions causes to interfere with his functioning such as, sleep disturbances, mood disturbances, anger management, conflict with employees at work, recent leave due to conflict, hypervigilance, trust issues, irritable biopsy, recklessness, easily triggered, lack of concentration/fatigue, and inability to regulate emotions and also renders him unable to work with others. Ultimately, the Board affords significant probative value to the professional opinions regarding the impairment the Veteran's PTSD symptoms would have on his employment, as well as his lay testimony. Accordingly, in light of the foregoing, the Board finds that the service-connected disabilities are of sufficient severity to render the Veteran unable to follow or maintain substantially gainful employment, as his earnings fell below or nearly below the poverty threshold, and the lay and medical evidence of record indicates that the marginal nature of his employment was directly related to his service connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.15, 4.16. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.