Citation Nr: 21003732 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 13-35 064 DATE: January 22, 2021 ORDER From August 5, 2004 until May 1, 2019, an initial 70 percent disability rating for posttraumatic stress disorder (PTSD) is granted. From October 1, 2004, a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. From August 5, 2004 until May 1, 2019, the Veteran’s PTSD manifested as occupational and social impairment with deficiencies in most areas. Total occupational and social impairment was not shown. 2. From October 1, 2004, the Veteran’s service-connected PTSD precluded securing or following a substantially gainful occupation, and any employment was marginal. CONCLUSIONS OF LAW 1. From August 5, 2004 until May 1, 2019, the criteria for a 70 percent disability rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. From October 1, 2004, the criteria for a TDIU were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to September 1970. The case is on appeal from a June 2005 rating decision. In a November 2017 decision, the Board issued a decision that increased the Veteran’s initial rating for PTSD from 30 percent to 50 percent prior to May 12, 2010, and denied a rating in excess of 50 percent thereafter. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court), which issued an order in June 2019 granting a May 2019 joint motion for remand (JMR). The Court’s order remanded the Board’s decision denying an initial rating for in excess of 50 percent for PTSD for action consistent with the terms of the JMR. Thus, the issue of a rating in excess of 50 percent for PTSD is before the Board pursuant to the Court’s order. In May 2019, the Board remanded the claim for additional development. While the case was in remand status, a June 2020 decision increased the Veteran’s rating for PTSD to 100 percent effective from May 2, 2019. Although a higher rating for PTSD has been assigned, the increased rating matter remains in appellate status as the maximum rating has not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Additionally, the TDIU issue is on appeal for the period prior to May 2, 2019. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. An initial rating in excess of 50 percent for PTSD from August 5, 2004 until May 1, 2019. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s PTSD has been evaluated under the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, DC 9411. A 10 percent rating is warranted for PTSD where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent evaluation is warranted for PTSD where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Under the General Formula, 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). While Global Assessment of Functioning (GAF) scores are included in the Veteran’s medical records, the Board will not consider GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018) (finding GAF scores to be unreliable indicators of functional impairment not useful in rating psychological disabilities). Background and Facts The Veteran is seeking a higher initial rating for his service-connected PTSD. He contends that the currently assigned 50 percent rating for the period prior to May 2, 2019 does not reflect the severity of his symptoms. The Veteran provided an evaluation prepared by a private psychologist and his treating counselor in November 2004. The psychologist diagnosed the Veteran with PTSD based on the DSM-IV criteria. The psychologist explained that the Veteran struggled on a daily basis to cope with what he saw in Vietnam, and that his life was profoundly affected and forever changed by what he experienced in Vietnam. With regard to the Veteran’s family background, the Veteran reported he was married in 1978 and divorced in 1988, but that he remarried his ex-wife in 1990, again divorcing in 1992. Since that time, he reported involvement in two relationships, one that lasted for four years, and another that lasted for two years. He also stated that he maintains relationships with his two half-sisters. Concerning his employment history, the Veteran reported that after service, he worked for three employers. He worked for his last employer from 1973 to 2003, noting that he worked the nightshift, did not have any friends at work, or socialize with any coworkers. He stated he left his last job due to fibromyalgia, which made it difficult to work. With regard to PTSD symptoms, the psychologist noted that the Veteran reported difficulty falling and staying asleep. The Veteran also reported getting up to look outside to make sure his house was secure and feeling like he was on guard duty in Vietnam. The Veteran reported experiencing nightmares about three to four times per month, and waking up with a racing heart, sweating, feeling like he is ready to fight, and feeling scared. The Veteran reported further that he experiences flashbacks once per week, hypervigilance, discomfort in crowds, a distrust for others, intrusive thoughts about Vietnam, memory problems, and relationship problems. The Veteran was seen in December 2004 by a psychiatrist at a VA Medical Center PTSD clinic who provided an initial assessment. At that time, the psychiatrist diagnosed the Veteran with adjustment disorder with anxiety and depression. With regard to the Veteran’s social and occupational history, the psychiatrist noted that following the Veteran’s return from Vietnam, he did not socialize much and preferred to be alone. The evaluation also noted that the Veteran was married in 1978 and divorced in 1987, but remarried his ex-wife in 1989 and divorced again in 1991, and the Veteran did not have any children. The psychiatrist also noted that the Veteran worked for the same company from 1973 until his retirement in February 2004. The examiner commented that the Veteran declined to delineate any symptoms and stated that his symptoms were delineated in previous documentation. The psychiatrist noted that the Veteran’s life did not seem to have been markedly disrupted by military service. He also stated that Criteria A for PTSD was met, and he could not rule out a PTSD diagnosis. The Veteran was afforded a VA examination in December 2006. At that time, the examiner did not report a diagnosis of PTSD. He concluded that although the Veteran reported a stressor that meets the DSM-IV criteria, he did not report psychological symptoms that meet the DSM-IV PTSD symptom criteria, nor did he report any significant impact on psychosocial functioning. With regard to his psychiatric symptoms, the Veteran reported a mild tendency to be alone, but the examiner noted that the Veteran engages in regular activities with others, such as going to the gym. The Veteran also reported mild memory problems. The examiner noted the Veteran’s symptoms appeared be mild in nature. With regard to the Veteran’s occupational history, the Veteran reported that he worked for General Motors for 31 years but took a buyout when it was offered in 2004. He also reported that he began working as a booking agent for various bands in 2002. With regard to family history, the Veteran reported a marriage and relationship history as described above and that he maintained relationships with two sisters. He stated that he has one sister he sees weekly and another sister, who lives in another state, that he speaks to regularly. The examiner also noted that the Veteran socializes with a few friends and attends church regularly. With regard to mental status examination, the examiner commented that the Veteran had good grooming and hygiene; he was alert and fully oriented; his insight, judgement, and comprehension appeared to be in the average or better range; he denied any hallucinations or delusions; and denied any suicidal or homicidal ideations, plans or intent. In March 2008, the Veteran provided a statement he prepared with the assistance of his treating counselor addressing what he alleged to be inaccuracies in the December 2006 VA examination report. He stated that, contrary to the examiner’s finding that he has a close relationship with his sisters, he sees his sisters infrequently. He also denied close relationships with friends, as he had no interest or motivation in maintaining those relationships and instead preferred the company of his dog. The Veteran also reported frequent nightmares and flashbacks in contrast to the examiner’s determination that he had no significant psychosocial impairment as a result of his service. The Veteran also reported concentration and memory issues. The Veteran’s counselor commented that she noticed concentration issues, as she has to repeat questions several times. She also commented that the Veteran suffered daily from his service experiences, and his PTSD was chronic and severe. The Veteran was also afforded a May 2008 VA examination. At that time, the examiner diagnosed the Veteran with adjustment disorder with depression. The examiner noted that with regard to the Veteran’s employment history, he worked for General Motors as an assembler from 1973 to October 2004, and that from 2002 to 2005, he became a musical act booking agent and manager for various bands, which included negotiating fees to perform concerts. With regard to marital and family relationships, the examiner noted the Veteran was married and divorced twice to the same woman, and they did not have any children. With regard to current psychosocial functioning, the examiner stated the Veteran was now retired and stayed home most of the time, spent his time with his dog, and watched television. He noted the Veteran continued to have a relationship with his siblings, even if it is just on special occasions. The examiner also noted that the Veteran was depressed with no motivation or interest in doing the things he used to do, and that the Veteran had become a loner. The examiner also noted that when asked about suicide attempts, the Veteran claimed to have had suicidal thoughts in the past, but did not want to discuss it any further. With regard to PTSD, the examiner noted the Veteran had stressors in Vietnam as he saw killings and participated in them. The examiner noted further that the Veteran had recollections of the events, which are evidenced by his nightmares and dreams of dead bodies and killings two to three times per week. The examiner reported that the Veteran also had flashbacks, and some feelings of detachment towards others. The Veteran underwent an additional VA examination in March 2010. At that time, the examiner determined the Veteran had a diagnosis of PTSD. With regard to social and occupational impairment, the examiner determined that the Veteran had an occasional decrease in work efficiency, and there were intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms. The examiner stated that the Veteran’s most prominent symptom was a moderate depressed mood. She also noted that the Veteran had a persistent depressed mood resulting in social withdrawal, loss of pleasure and interests, low self-esteem. She further reported that the Veteran experienced nightmares, re-experiencing trauma in response to triggers, disturbed sleeping due to nightmares, emotional numbing, mild hypervigilance, and occasional panic attacks. The Veteran provided an additional private evaluation in January 2011 by the same psychologist and the licensed mental health counselor who provided the November 2004 psychological evaluation. The counselor noted that she had not seen the Veteran since March of 2008, but he returned in October 2010. With regard to symptoms, the evaluation stated that the Veteran experienced combat related nightmares almost every night; intrusive thoughts; discomfort in public places and in crowds; increasing social isolation; difficulty concentrating; agitated outbursts; panic attacks; depression; and concern for personal safety. With regard to occupational functioning, the evaluation stated that the Veteran reported he could not return to work. He stated that he was a concert promoter a few years ago and, also used to sell concert memorabilia but stopped doing so due to memory loss. The Veteran’s representative provided an evaluation prepared by a private psychiatrist in May 2019. The psychiatrist reviewed the Veteran’s records in the claims file and interviewed the Veteran. He concluded the Veteran developed PTSD as a result of his experiences in Vietnam and became progressively more mentally ill over time, with his disease eventually disabling him by 2004. He stated further that the Veteran experienced symptoms for 40 years before receiving treatment and attempts at treatment over the following 10 years were ineffectual. The psychiatrist noted the Veteran was completely disabled from any meaningful employment by 2004, and had the full constellation of PTSD symptomatology which had become too intense for him to manage, causing him to retire. The psychiatrist noted that he discussed with the Veteran reasons he was reticent to obtain more consistent treatment for his PTSD. The Veteran explained that every time he spoke about his symptomatology and his stressor events, his symptoms would be significantly worse for weeks. The Veteran also stated that he left his job in 2004 after 30 years at General Motors specifically because he could no longer tolerate the interpersonal interactions, dissociative episodes while on the job, and feeling constantly tired with the loss of focus and concentration. He advanced that experiencing these symptoms at work endangered himself and coworkers on the assembly line. He stated further that his work as a band manager did not earn any income, and he often lost money. The psychiatrist explained that, occupationally and socially, the Veteran was able to use denial, extensive work, and avoidance mechanisms to mitigate his PTSD symptoms. The psychiatrist further discussed the Veteran’s PTSD symptomatology. He stated that the severity of the symptoms created a situation where the Veteran was not capable of meaningful or gainful employment. The psychiatrist noted that the Veteran described, consistent with his medical records, that he experienced nightmares that were causing him to have insomnia and fatigue on a daily basis; constant intrusive thoughts of Vietnam, dissociative episodes in the workplace, social isolation, emotional numbness, decreasing capacity for appropriate interactions with coworkers, family, and friends, and irritability. The psychiatrist also commented that after the Veteran’s retirement, he also became more irritable, angry, restless, unable to sleep, overly hypervigilant, and preoccupied with Vietnam. He further commented that the Veteran could never be in an occupational setting where there is an expectation of consistent, focused attention and concentration with appropriate communication and social interaction. The evidence of record also includes VA treatment records from the appellate period. The specific details of these record will be discussed as they pertain to the analysis below. Analysis After engaging in a holistic analysis assessing the severity, frequency, and duration of the signs and symptoms of the Veteran’s PTSD, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples, and when looking at the effects determining the impairment level, the Board finds that an initial rating of 70 percent is warranted prior to May 2, 2019 (since August 5, 2004). See Vazquez Claudio, 713 F.3d at 117; Bankhead, 29 Vet. App. at 22. For the period prior to May 2, 2019, the Board finds that the Veteran exhibited symptoms consistent with the 70 percent rating criteria including suicidal ideation, obsessional rituals which interfere with routine activities, and near continuous panic or depression. Concerning suicidal ideation, an October 2007 VA treatment record shows the Veteran reported feelings of depression, worthlessness, and suicidal thoughts. In addition, at the time of the May 2008 VA examination, the Veteran reported suicidal thoughts, though declining to further discuss those thoughts. See Bankhead, 29 Vet. App. at 22 (noting the importance of suicidal ideation in the criteria for a 70 percent rating). With regard to obsessional rituals which interfere with routine activities, the evidence of record reflects that the Veteran reported at the time of the November 2004 private evaluation that he wakes up several times at night and looked outside to ensure the house was secure. This occurrence of this symptom is consistent with other evidence of record, as VA treatment records reflect the Veteran reported feeling constantly on guard and watchful at the time of PTSD screenings in September 2004, August 2005, and May 2006. Concerning near continuous panic or depression, as noted above, VA treatment records reflect that at the time of PTSD screenings in September 2004, August 2005, and May 2006, the Veteran reported that he feels constantly on guard, watchful, or easily startled. In addition, as in the March 2008 statement prepared by the Veteran and his counselor, his counselor stated that the Veteran suffered on a daily basis from service experiences and she also characterized his PTSD as chronic and severe. Moreover, the examiner who provided the May 2008 VA examination noted that the Veteran has been depressed with no motivation or interest in his previous interests or activities. The Board acknowledges that the VA examiners who provided the December 2006, May 2008, and March 2010 VA examinations determined that the Veteran’s occupational and social impairment was much less severe. However, in this case, the Board finds the evidence of record, including the November 2004 evaluation and March 2008 statement from the Veteran’s treating counselor, at least as probative as the conflicting December 2006, May 2008, and March 2010 VA examination reports. Although VA does not automatically assign a treating physician’s opinion greater weight, the Board may consider a lengthy treating relationship along with all the other evidence when assigning probative weight. See White v. Principi, 243 F.3d 1378, 1380-81 (Fed. Cir. 2001). In this case, other evidence includes the favorable and the May 2015 psychiatric evaluation from the private psychiatrist who evaluated the Veteran. The opinion is persuasive as the rationale for the opinion is based upon accurate facts and sound reasoning, and the opinion is consistent with the evidence of record. It also includes a plausible explanation for the discrepancies between the VA examiners’ opinions and the Veteran’s treating counselor regarding the severity of the Veteran’s symptoms, as it states that the Veteran experienced an exacerbation of symptoms when discussing them, and as such, he may have been less than forthcoming with the VA examiners. This opinion also bolsters the opinions provided by his treating counselor. While an increased rating to 70 percent is warranted, a further increase to 100 percent for total occupational and social impairment is not warranted prior to May 2, 2019. The Board acknowledges the severity of the Veteran’s PTSD symptoms, including suicidal ideation, obsessional rituals, depressed and anxious mood, chronic sleep impairment, and hypervigilance. However, the evidence does not support that his PTSD caused total occupational and social impairment during the period prior to May 2, 2019. A disability that justifies a 100 percent rating is so severely disabling that some of the examples of symptoms include posing a “persistent” threat of danger to others, “gross impairment in thought processes or communication,” not knowing one’s own name, the names of close relatives, or one’s occupation, and an inability to perform activities of daily living, including maintenance of even minimal personal hygiene. The Board determines the Veteran has not exhibited such symptoms. These symptoms are consistently absent throughout the appellate period as VA treatment records show that the Veteran was always oriented to time, place, situation; his thought processes were organized, his thoughts were free of delusions; and he always appeared well groomed. Therefore, after resolving reasonable doubt in the Veteran’s favor, the Board finds the PTSD warrants an initial 70 percent rating prior to May 2, 2019 (from August 5, 2004), but not higher. See 38 U.S.C. § 5017(b); 38 C.F.R. §§ 3.102, 4.3. 2. A TDIU prior to May 2, 2019. Legal Criteria A TDIU 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.16. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service connected disability rated at 60 percent or higher; or two service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Facts and Analysis The Veteran contends that service-connected PTSD prevents him from obtaining and maintaining substantially gainful employment. The Board notes that while the Veteran’s claim for increased rating for his PTSD was on appeal, he submitted a claim for TDIU in May 2019. The Board finds that the Veteran’s TDIU claim is part and parcel of the Veteran’s PTSD increased rating claim, and thus, no further appeal is necessary for that issue and the Board has jurisdiction over it. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Harper v. Wilkie, 30 Vet. App. 356 (2018). In addition to the evidence of record pertaining the severity of the Veteran’s PTSD, described above, the evidence of record also includes the Veteran’s May 2019 TDIU claim form. According to the Veteran’s May 2019 TDIU claim form, his PTSD prevented him from securing or following any substantially gainful employment. He reported that his PTSD affected his full-time employment on October 1, 2004, which is the date he last worked full time, and the date he became too disabled to work. He also reported that for the last five years he worked, he was employed by General Motors as an assembler, and he was employed by General Motors from May 1973 until October 1, 2004. The Veteran also reported that he attempted to work as a concert promoter in 2005. He commented that although he tried to work as a self-employed concert promoter, he was never able to earn much money from it, and eventually it became too much for him and he gave it up entirely. With regard to education and other schooling, the Veteran reported that he completed one year of college. Applying this evidence to the Ray factors, the Veteran is shown to have completed one year of college. He has a work history primarily as an assembler and some experience in concert promotion. The evidence of record reflects that the Veteran’s PTSD causes symptoms including insomnia and fatigue on a daily basis; constant intrusive thoughts of Vietnam; dissociative episodes in the workplace; social isolation; emotional numbness; decreasing capacity for appropriate interactions with coworkers, family, and friends, and irritability. See May 2019 psychiatric evaluation. The Board acknowledges there is conflicting evidence of record concerning the severity of the Veteran’s PTSD symptomatology. However, the Board finds the evidence of record has reached at least a level of equipoise on the question of whether the Veteran’s service-connected PTSD precludes him from securing or following a substantially gainful occupation. In this case, as explained above, the Board has afforded more probative weight to the opinions provided by the Veteran’s private counselor and the psychiatrist who provided the May 2019 private psychiatric evaluation. Thus, due to the Veteran’s psychiatric impairments, he would unlikely be able to secure or follow more than marginal employment consistent with his background, training, and education at any job, whether sedentary or physical, which would require a degree of mental functioning to carry out the job functions that has been outside the Veteran’s capacity. Any type of job would require some degree of minimal social interactions, the ability to concentrate, and regular attendance. While the Veteran’s PTSD did not result in total occupational and social impairment prior to May 2, 2019, the standard for TDIU is lower. Next, the Veteran also meets the schedular requirements for a TDIU on a schedular basis from August 5, 2004. From that date, the Veteran’s service-connected PTSD is now rated at 70 percent disabling for the period on appeal. As such, he meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). As far as the effective date of the Veteran’s TDIU, the evidence of record establishes that the Veteran ceased working as an assembler at General Motors on October 1, 2004 but continued to his work as a self-employed concert promoter until 2005. As the evidence of record indicates that the Veteran generated very little, if any, income from his work as a concert promoter, the Board considers employment to marginal. As such the Board finds that a TDIU is warranted from October 1, 2004, as that is when the Veteran both met the schedular requirement and any employment was marginal under 38 C.F.R. § 4.16(a). Accordingly, when reasonable doubt is resolved in the Veteran’s favor, the Board concludes that a TDIU is warranted from October 1, 2004. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Gray, 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.