Citation Nr: 21004673 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-08 056 DATE: January 27, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for chronic fibromyalgia from June 24, 1994, to June 22, 2006, is denied. Entitlement to an initial rating in excess of 10 percent for chronic fatigue syndrome from February 7, 1996, to March 9, 2005, is denied. Entitlement to an initial rating in excess of 10 percent for irritable bowel syndrome is denied. Entitlement to initial higher ratings for posttraumatic stress disorder (PTSD), rated as 10 percent disabling from June 24, 1994, to August 19, 1998, is denied Entitlement to a 70 percent rating for PTSD from August 20, 1998, to March 9, 2005, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 1, 2003, is denied. Entitlement to TDIU from January 1, 2003, to March 9, 2005, is granted. FINDINGS OF FACT 1. From June 24, 1994, to June 22, 2006, the Veteran’s fibromyalgia did not result in symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. 2. From February 7, 1996, to March 9, 2005, the Veteran’s chronic fatigue syndrome resulted in symptoms which wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year; or symptoms controlled by continuous medication. 3. For all periods on appeal, the Veteran’s irritable bowel syndrome has been manifested by no greater than moderate symptoms. 4. From June 24, 1994, to August 19, 1998, the Veteran’s PTSD resulted in no more than 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. 5. From August 20, 1998, to March 9, 2005, the Veteran’s PTSD resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, to specifically include symptoms such as suicidal ideation, difficulty in adapting to stressful circumstances, impaired impulse control, and mild memory loss. 6. Prior to January 1, 2003, the Veteran was employed full time. 7. From January 1, 2003, the Veteran’s combined disability rating was 80 percent, with his PTSD rated as 70 percent disabling; he was unable to obtain or maintain gainful employment from that date. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for fibromyalgia June 24, 1994, to June 22, 2006, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5025. 2. The criteria for an initial rating in excess of 10 percent for chronic fatigue syndrome from February 7, 1996, to March 9, 2005, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.88b, DC 6354. 3. The criteria for an initial rating in excess of 10 percent for irritable bowel syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, DC 7319. 4. The criteria for a disability rating in excess of 10 percent for PTSD from June 24, 1994, to August 19, 1998, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411 5. The criteria for a 70 percent disability rating for PTSD from August 19, 1998,to March 9, 2005, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. 6. The criteria for a grant of TDIU, prior to January 1, 2003, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102 3.340, 3.341, 4.15, 4.16, 4.19, 4.25. 7. The criteria for a grant of TDIU, from January 1, 2003, to March 9, 2005, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102 3.340, 3.341, 4.15, 4.16, 4.19, 4.25 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1987 to November 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2011 and March 2012 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal previously came before the Board in September 2016, at which time the increased rating claims were remanded for additional development. That decision also included the issue of entitlement to TDIU prior to March 9, 2005 under the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that, although the claim of entitlement to TDIU prior to March 9, 2005, was subsequently denied in a December 2018 rating decision, and the Veteran filed a notice of disagreement with that denial, although that denial has not been formally appealed to the Board, it remains part and parcel of the increased rating claims on appeal in this matter, and therefore remains part of this appeal under the holding in Rice. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran’s claims on appeal, the question for consideration is the propriety of the initial evaluations assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here 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. 1. Entitlement to an initial rating in excess of 10 percent for chronic fibromyalgia from June 24, 1994, to June 22, 2006 The Veteran seeks an initial rating in excess of 10 percent for chronic fibromyalgia from June 24, 1994, to June 22, 2006. The Board finds that this claim should be denied. As an initial matter, as with the chronic fatigue syndrome, addressed below, this appeal stems from a rating decision which granted an earlier effective date for the grant of service connection of this disability. Therefore, the rating on appeal is limited to the earlier effective date period only. The Veteran’s fibromyalgia is rated under Diagnostic Code (DC) 5025, which specifically compensates for that disability. Under the applicable rating criteria, fibromyalgia symptoms are described as “with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Reynaud’s-like symptoms.” A 10 percent rating is assigned for fibromyalgia symptoms which requires continuous medication for control. A 20 percent rating is assigned for symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. Finally, a 40 percent rating is assigned for symptoms that are constant, or nearly so, and refractor to therapy. 38 C.F.R. § 4.71a, DC 5025. During the Veteran’s initial VA examination in September 1994, the Veteran reported a negative history of symptoms for fibromyalgia. He described joint popping in the knees, elbows and left shoulder, but denied swelling or heat. Muscle strength, tone and movements were generally normal. He reported that joint pain would awaken him at night. He had not missed any work due to pain. He walked with a normal gait. No joint tenderness was noted. No swelling or effusion was noted. Range of motion testing in the joints that have been tested during the period on appeal were full and normal. He had some upset stomach or diarrhea at least two times a week, worse if he was nervous or upset about something. Bowel sounds were normoactive and there was no rebound tenderness on examination. Neurologically, his examination was unremarkable, although some muscle contraction headaches, postural dizziness and somatic complaints were noted. A stomach examination conducted in February 2011 found a history of diarrhea, which had resolved. In a February 1997 joints examination he reported pain in his elbows, knees, and low back. Range of motion was nearly complete on all planes. There was no evidence of swelling, tenderness or effusion. Ligaments appeared stable. The Veteran described his symptoms as stiffness, and reported that it woke up at night. His pain was never severe enough to cause him to miss work. A neurological examination conducted at that time was normal with muscle contraction type headaches and a variety of symptoms attesting to autonomic instability of unknown cause. No other medical evidence is available during the applicable appeal period which would attest to fibromyalgia symptoms of a worsening variety. In 2016, the Board remanded this claim so that a medical opinion could be obtained which discussed the potential severity of the Veteran’s fibromyalgia between 1994 and 2006. The examiner, in May 2017, reviewed the claims file, but then determined that a statement regarding the severity of the Veteran’s fibromyalgia between 1994 and 2006 could not be given because it would be speculative in nature as the Veteran was not actually examined during that period of time. In light of the above, the Board finds that a rating in excess of 10 percent is not supported. In this regard, while some joint pain and other symptoms were noted, they are generally mild in nature. Although perhaps episodic in nature, there is no indication that the symptoms were present a minimum of one-third of the time. Further, while some symptoms such as bowel disturbance, fatigue, and depression/anxiety were present, those symptoms are separately rated during the appeal period, and applying them to the fibromyalgia rating as well would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Therefore, the Board concludes that, based on the evidence of record in this matter, the criteria for a rating in excess of 10 percent for fibromyalgia, from June 24, 1994, to June 22, 2006, have not been met, and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 2. Entitlement to an initial rating in excess of 10 percent for chronic fatigue syndrome from February 7, 1996, to March 9, 2005 The Veteran seeks an initial rating in excess of 10 percent for chronic fatigue syndrome, from February 7, 1996, to March 9, 2005. The Board finds that the claim should be denied. The Veteran’s chronic fatigue syndrome is rated under DC 6354, which explicitly rates for that disability. Under the applicable criteria a 10 percent rating is assigned for symptoms which wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year; or symptoms controlled by continuous medication. 38 C.F.R. § 4.88b, DC 6354. A 20 percent rating is assigned for symptoms which are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level; or which wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year. Id. A 40 percent rating is assigned for symptoms are nearly constant and restrict routine daily activities from 50 to 75 percent of the pre-illness level; or which wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year. Id. A 60 percent rating is assigned for symptoms which are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level; or which wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year. Id. Finally, a 100 percent rating is assigned for symptoms which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. Id. Symptoms of chronic fatigue syndrome are described as debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, or confusion), or a combination of other signs and symptoms. Id. For purposes of evaluating chronic fatigue syndrome, incapacitation only exists when a licensed physician prescribes bed rest and treatment. Id. A psychiatric examination which occurred in February 1997 noted a history of joint pain, headaches, dizziness, stomach pain, and diarrhea. A neurological examination conducted the same day also noted mild postural nonvertiginous dizziness, which is momentary, and never resulted in loss of consciousness. Other autonomic instability with episodic sweating in parts of his body were noted. He also had headaches which were not disabling, but annoying. Gastrointestinal and psychiatric symptoms were also noted. The Board has carefully reviewed the other medical evidence of record but finds nothing that would speak to symptoms such as fatigue or cognitive impairments. In 2016, the Board remanded this claim so that a medical opinion could be obtained which discussed the potential severity of the Veteran’s chronic fatigue between 1996 and 2005. The examiner, in May 2017, reviewed the claims file, but then determined that a statement regarding the severity of the Veteran’s fatigue syndrome symptoms between 1996 and 2005 could not be given because it would be speculative in nature as the Veteran was not actually examined during that period of time. In light of the evidence of record, the Board finds that a rating in excess of 10 percent is not supported during the period on appeal. Indeed, there is no indication of any type of debilitating fatigue symptoms resulting in restriction of daily activities, or resulting in any periods of incapacitation. Indeed, there is no indication in the medical record which would indicate a physician ever prescribed bed rest or treatment during the appeal period. The Veteran remained employed for the gross majority of the time on appeal. Further, to the extent that he has described periods of malaise and other symptoms affecting his functional ability during that period, the Veteran is simultaneously service-connected for fibromyalgia, irritable bowel, and psychiatric disabilities which also account for those symptoms, and therefore, including them in the chronic fatigue rating would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Therefore, the Board concludes that, based on the evidence of record in this matter, the criteria for a rating in excess of 10 percent for chronic fatigue syndrome, from February 7, 1996, to March 9, 2005, have not been met, and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 3. Entitlement to an initial rating in excess of 10 percent for irritable bowel syndrome The Veteran seeks a rating in excess of 10 percent for irritable bowel syndrome. The Board finds that the claim should be denied. The Veteran’s irritable bowel syndrome is rated under DC 7319, which rates for irritable colon (bowel) syndrome. Under the applicable criteria, a noncompensable rating is assigned for mild irritable colon syndrome, described as disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is granted for moderate symptoms, described as frequent episodes of bowel disturbance with abdominal distress. Finally, a 30 percent rating is granted for severe symptoms, described as diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, DC 7319. The Veteran was afforded a VA stomach examination in February 1997. At that time he reported a history of diarrhea between 1990 and 1992, which had since resolved. He also reported periods of nausea, due to mental distress, which caused him to feel like he was going to throw up. There were no specific foot intolerances noted. On examination, his abdomen was flat without organomegaly, masses or tenderness. The Veteran was again afforded a VA examination in July 2005. At that time he reported diarrhea starting in service. Course since onset was reported as intermittent, sometimes with severe exacerbations. He did not have any current treatments. He reported vomiting several times a week, however, that was attributed to anxiety and anger, and not to any specific gastrointestinal issues. Diarrhea was reported a moderate and episodic in nature, with episodes occurring more than 12 times per year, and lasting up to 5 days at a time. He had epigastric pain several times per week, lasting 1 to 2 hours. Severity of epigastric pain was moderate. Impact on his usual daily activities was moderate with regard to shopping, traveling or toileting, and non-existent to mild with regard to all other areas. A new examination was conducted in April 2017, at the request of the Board in its most recent remand. At that time, he reported continued unusual bowel problems, usually having two bowel movements daily. His bowel movements begin with hard stool, followed by liquid stool. He treated his condition with over the counter mediation when he feels the sensation of diarrhea developing. He did not require continuous medication. He had not had any surgical treatments. He did not have episodes of bowel disturbance with abdominal distress, or exacerbations or attacks of the intestinal condition. He did not suffer weight loss as a result of his condition, indeed, he reported gaining weight. He did not have malnutrition. No other pertinent physical findings, complications, conditions, signs or symptoms were found. The condition did not impact his ability to work. The Board has reviewed his available private and VA treatment records, and with the exception of a noted ongoing diagnosis of bowel issues, there is no indication of symptoms which would give rise to an indication of severe symptoms. In light of the available evidence, the Board finds that a rating in excess of 10 percent is not warranted. Indeed, the Veteran’s irritable bowel symptoms, while certainly present, are regular and episodic at most. There is no indication of “severe” symptoms. The symptoms are not constant, but rather episodic in nature, occurring several times a week, at most. They do not interfere with regular activities to the point of preventing any such activity. There is no indication that his irritable bowel syndrome impacts his employability in any way. In short, when taken as a whole, the Veteran’s irritable bowel syndrome has not been shown to be “severe” in nature, and therefore a rating in excess of 10 percent is not warranted. As such, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 4. Entitlement to initial higher ratings for posttraumatic stress disorder, rated as 10 percent disabling from June 24, 1994, to August 19, 1998, and as 30 percent disabling from August 20, 1998, to March 9, 2005 The Veteran seeks a rating in excess of 10 percent for PTSD prior to August 19, 1998, and in excess of 30 percent from August 20, 1998, to March 9, 2005. The Board finds that the claim should be denied. As an initial matter, the Board notes that the Veteran is in receipt of a 100 percent rating from March 9, 2005, for PTSD, and therefore that period is not for consideration as he has been granted the maximum possible rating from that date to the present. The Veteran’s PTSD is evaluated under Diagnostic Code (DC) 9411, which specifically compensates for PTSD, and applies the General Rating Formula for Mental Disorders. Under these rating criteria, a 10 percent rating is assigned for 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. 38 C.F.R. § 4.130, DC 9411. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is assigned for 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court of Appeals for Veterans Claims (Court) also pointed out in that case, “[w]ithout those examples, differentiating a 30 percent evaluation from a 50 percent evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. June 24, 1994, to August 19, 1998 The Veteran was afforded a VA mental disorders examination in August 1994. He reported being given antidepressant and antianxiety medications by a family physician for several months prior, but refused to see a psychiatric specialist and was not presently undergoing any treatment for his condition. His current state was described as “not as bad as it was before.” He reported feeling nervous all the time, and resenting having to work hard and having his money used to pay for immigrants coming into the country. During exacerbations of anxiety, he admitted to increased heart rate, dyspnea, apprehension and increased perspirations. He denied a history of hallucinations, homicidal or suicidal thoughts, drug or alcohol abuse, head injury, stroke or seizure. Sleep was increased. He reported exhaustion when thinking about too many things. He was 27 credit hours short of a college degree. He was been married but was divorced for three years. He was employed as an inspector for the Army Corp of Engineers. He presented as well-developed, well-nourished, appropriately dressed, well-groomed, and with no unusual motor activity. Speech was mildly pressured. Mood was anxious and irritable. Affect was consistent with mood. He was oriented to person, place, situation and time. Remote, recent, and immediate recall were good. Intelligence was average. Judgment was good. Abstract thinking was good. Insight was fair. He was mildly depressed but his symptoms were not severe enough to justify a diagnosis of depression. His diagnosis was given as anxiety disorder, not otherwise specified. The Board finds that this examination report does not support a rating in excess of 10 percent. The Veteran’s symptoms were generally mild at that point in time, and did not interfere with his ability to maintain employment. While some evidence of depression was evident, it was not so significant as to warrant a diagnosis. Anxiety did exist, although it also did not generally interfere with occupational tasks. He was coherent, employed, and capable of managing his daily activities without issue. As such, when taken as a whole, the Board does not find that this evidence supports a rating in excess of 10 percent. The Veteran was again afforded a VA mental health examination in February 1997. At that time, he reported having seen a private psychiatrist two or three times, due to an inability to concentrate and sleep. He was not using any medications at the present. His symptoms were reported as generally the same. He consumed four glasses of wine per week. He admitted to a remote history of homicidal or suicidal thoughts, but denied any such thoughts at present. He denied a history of hallucinations or during use. He had difficulty sleeping, but attributed that to physically stiff arms and legs. Since October 1996 he had worked as a garbage truck driver, but prior to that had been employed with the Army Corp of Engineers as a construction inspector. He reported leaving that position because he was upset with the people he worked with not working hard enough. He was divorced and lived alone. He reported feeling anxious all the time, although less anxious if he had a drink. He reported feeling overwhelmed and depressed due to a lack of accomplishment. He presented as well-developed and well-nourished. He was appropriately dressed and adequately groomed. Speech was pressured, although there was not flight of ideas or looseness of association. Mood was anxious. He felt that “Gulf War Syndrome” was being covered up by the government. He denied homicidal or suicidal thoughts. He was oriented to person, place and time. Remote, recent and immediate memory were adequate. Intelligence was average. Judgment to avoid common danger was adequate. Abstraction was adequate. Insight was poor. He was judged to have generalized anxiety disorder and dysthymic disorder. Again, the Board finds that this evidence does not support a rating in excess of 10 percent. Although certainly more severe than his prior noted symptoms, there is no evidence that the Veteran’s symptoms caused occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks. Although he had anxiety and depression, there is no indication that these symptoms have interfered with occupational or social impairments. Indeed, he remained employed. His memory and judgment were good. There was no indication of inappropriate behavior. Rather, while certainly causing depression and anxiety, the Veteran continued to function normally. Treatment records during this period indicated that the veteran had a chronic sense of doom. He was experiencing sleep difficulties. He reported being socially withdrawn, but then acknowledged dating and having friends. He was also involved in church. He acknowledged some crying spells. Mood would vary from feeling sad to being mad and over aroused. His employment was stable. The veteran maintained an organized train of thought. There was no evidence of psychosis or current suicidal ideation. The Board has also considered the other evidence of record during this period of time but similarly does not find that it gives rise to a higher rating. Statements from a coworker in September 1996 indicated frustration with his position at work, particularly a high stress working environment due to frequent travel caused depression and frustration in the Veteran, resulting in him seeking employment elsewhere. Another statement from a coworker in 1996 stated that he was a hardworking, honest, law-abiding citizen, and should be admired for his ability to hold the truth of his claims, despite VA taking its time in adjudicating his claims. A statement from his former supervisor, dated in January 1997, indicated some mood swings although he generally physically healthy. He was noted to have some temper issues and get down on himself. However, there is no indication that the Veteran was incapable of completing his work or behaved in any way that would be considered erratic or inappropriate. All considered, the Board finds that the evidence of record, accounting for the period prior to August 20, 1998, does not show symptoms that would account for occupational and social impairment with occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks. While symptoms of depression and anxiety were certainly present, they did not manifest to such a degree that his occupational or social profile were affected in any significant way. As such, the Board finds that, prior to August 20, 1998, the criteria for a rating in excess of 10 percent for PTSD was not met. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. August 20, 1998, to March 9, 2005 Beginning August 20, 1998, medical evidence shows periodic worsening of symptoms, although the record continues to show overall management of his condition with medication. A VA examination conducted on October 7, 1999, indicate treatment since March 1997 with a VA clinic. The Veteran was treated with multiple medications. he reported being very nervous and uncomfortable around people, and a feeling that everything was urgent. He had difficulty concentrating and sleeping. He denied hallucinations or drug use. He admitted to a reported a remote history of homicidal/suicidal thoughts although he denied any attempts or intention. He had engaged in an altercation at a Moose Lodge several months earlier because the other people were harassing his sister; he was not charged with any crime. He stated that he had a suicidal thought two weeks earlier, but that he would never take such action as it was against his religion. He was employed, although he was now riding the back of a garbage truck instead of rising on the front. He reported constant anxiety. He lived alone. He was well-developed and well nourished, appropriately dressed. Speech was spontaneous and fluent. Mood was anxious and depressed, as was affect. He denied hallucinations and delusions. He was oriented to person, place and time. Remote and recent memory were adequate, thought immediate recall was mildly impaired. Judgment was adequate to avoid common danger. Insight was fair. A private medical opinion from June 2006, recounted treatment during the period on appeal. Particularly, it noted increased symptoms of paranoia and depression, resulting in the Veteran moving around quite a lot between 2000 and 2005, to include a move to Korea, Georgia, Florida, California, and the Philippines. Symptoms included some irrational behavior and paranoia, loss of memory, and hostile behavior. He endorsed suicidal and homicidal ideation during this period of time. The Board finds that this evidence supports a 70 percent rating based on the rating criteria in the Diagnostic Code. Specifically, there is evidence that the Veteran’s PTSD caused issue in “most areas” at that point. Mood, judgment and thinking were all clearly affected, as noted by his constant anxiety and depression, mild memory loss, and impaired impulse control. Likewise, he had been forced to change positions with his job to riding the back of a truck instead of driving due to his symptoms. He also experienced several symptoms which are explicitly provided in the diagnostic criteria, to include impaired impulse control, difficulty in adapting to stressful circumstances, and suicidal ideation. As such, the Board will afford the Veteran the benefit of the doubt and grant a 70 percent rating, effective August 20, 1998, the date that his medical record indicates an increase in PTSD symptoms. With the grant, the Board does not find that a rating in excess of 70 percent is warranted during this period. Indeed, the Veteran remained employed through 2003, nor did he show total occupational and social impairment. There was no evidence of symptoms such as 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. As such, while a 70 percent rating is granted, a 100 percent rating is not. In sum, the Board finds that from August 20, 1998, to March 9, 2005, the Veteran’s PTSD warranted a 70 percent rating. To this extent, the appeal is granted. 5. Entitlement to a total disability rating based on individual unemployability prior to March 9, 2005 The Veteran seeks entitlement to TDIU prior to March 9, 2005. The Board finds that the claim should be denied prior to January 1, 2003, but that it should be granted from January 1, 2003 through March 9, 2005. A TDIU is assigned when a veteran’s service-connected disability or disabilities are of such severity that the veteran cannot secure or follow a substantially gainful occupation solely because of that disability or disabilities. 38 C.F.R. § 4.16. Generally, TDIU is awarded on a schedular basis, which requires that, if there is only one service-connected 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 sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Initially, the Board notes that, prior to August 20, 1998, the Veteran does not meet the schedular criteria for a grant of TDIU. Further, although the Board has granted a 70 percent rating for PTSD effective August 20, 1998, and the Veteran now meets the basic schedular criteria, a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), submitted by the Veteran in April 2019, certifies that he was employed full time through 2003. Although he did not give a specific date for his terminal date of employment, a private medical opinion from 2006 indicates that he resigned from his position in January 2003. Because he was employed through January 2003, he de facto does not meet the criteria for “unemployability.” Essentially, he cannot prove he was unemployable, because he was employed. Turning to the question of his employability between January 2003 and March 2005, the Board finds the evidence to be scarce regarding the severity of the Veteran’s PTSD during that period of time. Nonetheless, a medical opinion dated in June 2006, which includes a review of his private psychiatric treatment during that period, is persuasive in this matter. Despite not causing total occupational and social impairment, the Veteran’s PTSD during that period resulted in chronic and severe depression with auditory hallucinations, and suicidal/homicidal ideation that resulted in the Veteran stockpiling weapons, engaging in high-risk behavior, moving around regularly due to his inability to maintain single home, and fighting. He was not employed at that time, and the symptoms reported by the private examiner imply that he was not likely able to obtain or maintain full-time employment during this period on appeal. As such, the Board will afford the Veteran the benefit of the doubt, and grant TDIU from the period he became unemployable in January 2003. To this limited extent, the claim is granted. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, 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.