Citation Nr: 21063516 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 18-55 251 DATE: October 14, 2021 ORDER Entitlement to an effective date earlier than August 24, 2010, for the grant of service connection for posttraumatic stress disorder (PTSD), having been withdrawn by the Veteran, is dismissed. For the rating period from August 24, 2010 through September 21, 2016, a higher initial disability rating of 70 percent for service-connected PTSD is granted. From March 31, 2012 through September 21, 2016, a total disability rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. On June 16, 2021, prior to the promulgation of a decision in the instant appeal, the Board of Veterans' Appeals (Board) was informed, on the record at a virtual Board hearing, that the issue of an effective date earlier than August 24, 2010 for the grant of service connection for PTSD was no longer being pursued on appeal. 2. From August 24, 2010 through September 21, 2016, the severity, frequency, and duration of the symptoms of the service connected PTSD more nearly approximated occupational and social impairment with deficiencies in most areas. 3. From March 31, 2012 through September 21, 2016, the Veteran was unable to maintain substantially gainful employment as a result of the service connected PTSD. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of an effective date earlier than August 24, 2010 for the grant of service connection for PTSD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. Resolving reasonable doubt in the Veteran's favor, from August 24, 2010 through September 21, 2016, the criteria for a higher initial disability rating of 70 percent for the service connected PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. Resolving reasonable doubt in the Veteran's favor, from March 31, 2012 through September 21, 2016, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from July 1980 to June 1995. This matter came before the Board on appeal from a December 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Veteran testified at a June 2021 virtual Board hearing before the undersigned Veterans Law Judge (VLJ). The hearing transcript has been associated with the record. By way of history, in the December 2016 rating decision on appeal, the Agency of Original Jurisdiction (AOJ) granted service connection for PTSD from August 24, 2010, and assigned an initial 50 percent disability rating. The rating decision also granted a staged initial disability rating of 70 percent from September 22, 2016. Further, a TDIU was granted from the date of the staged rating, September 22, 2016. In a subsequently received April 2017 notice of disagreement (NOD), the Veteran explicitly stated that a 70 percent disability rating was being sought for the PTSD from August 24, 2010, the effective date for the grant of service connection for PTSD. At the June 2021 virtual Board hearing, the Veteran's representative confirmed that the Veteran was not in disagreement with the 70 percent rating period from September 22, 2016, and that a higher initial rating was only being sought during the 50 percent rating period from August 24, 2010 through September 21, 2016. Specifically, the representative argued that a 70 percent disability rating was warranted for the entire initial rating period on appeal. An appellant is presumed to be seeking the maximum possible benefit for the rating appealed. See A.B. v. Brown, 6 Vet. App. 35 (1993). In A.B., the United States Court of Appeals for Veterans' Claims (Court) recognized that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service connected disability. Id. at 39. Again, in the instant matter the Veteran and representative have explicitly stated that they are seeking a 70 percent disability rating for the initial rating period from August 24, 2010 through September 21, 2016. In the instant decision the Board grants the requested 70 percent rating for the entire relevant rating period on appeal, from August 24, 2010 through September 21, 2016. No subsequent statements by the Veteran indicate a desire to seek a disability rating in excess of 70 percent, and the evidence does not reflect that the Veteran's PTSD symptoms are of such severity, frequency, and/or duration to warrant a total 100 percent disability rating. Further, at the June 2021 virtual Board hearing, the Veteran's representative advanced that issues found in a December 2016 statement of the case (SOC) were on appeal before the Board. As the undersigned VLJ was left with the impression that those issues were on appeal, it was agreed that if those issues were on appeal another hearing would be scheduled to hear those issues. Notwithstanding the representation and misunderstanding that these issues were also on appeal, they are not. For this reason, no further hearing is warranted. Review of the record reflects that a SOC on the issues of service connection for bilateral vision loss and sleep apnea, and whether new and material evidence was received to reopen the issues of service connection for left finger, skin, and back disabilities, was issued in December 2016. The SOC was issued alongside the December 2016 rating decision granting service connection for PTSD, as the issue of service connection for PTSD had been appealed along with issues found in the December 2016 SOC. Following the issuance of the December 2016 rating decision and corresponding SOC, the Veteran signed and submitted to VA an Appeals Satisfaction Notice in December 2016. Per the notice, the Veteran was satisfied by the grant of service connection for PTSD and a TDIU, and wished to withdraw all remaining issues associated with the appeal. In other words, the Veteran withdrew the issues found within the December 2016 SOC, and these issues are not pending before the Board on appeal at this time, notwithstanding the statements to the contrary by the Veteran's representative at the June 2021 virtual Board hearing. While a VA Form 9, Appeal to Board of Veterans' Appeals, was received in January 2017, it was signed by the Veteran's representative, and not the Veteran. It appears the Veteran's representative was unaware that the Veteran had already withdrawn the appeal as to the issues found in the December 2016 SOC. As such, the Board finds that the issues found within the December 2016 SOC have been withdrawn, the January 2017 substantive appeal by the Veteran's representative after the issues had already been withdrawn by the Veteran is of no legal effect, as a withdrawn appeal is not revived by a subsequent filing of an untimely substantive appeal. (At most the untimely substantive appeal can serve as a new notice of disagreement is received within one year of the rating decision appealed, an exception not applicable in this case.) For this reason, the issues of service connection for bilateral vision loss and sleep apnea, and whether new and material evidence was received to reopen the issues of service connection for left finger, skin, and back disabilities, are not pending before the Board. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision dismisses the earlier effective date issue, grants the earliest effective date available at law for a TDIU, and awards a 70 percent disability rating for PTSD for the entire initial rating period on appeal, which, as discussed above, satisfies the appeal as to that issue, no further discussion of VA's duties to notify and assist is necessary. 1. Earlier Effective Date for Service Connection for PTSD is Dismissed The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. On June 16, 2021, prior to the promulgation of a decision in the instant appeal, the Board was informed, on the record at a virtual Board hearing, that the issue of an effective date earlier than August 24, 2010 for the grant of service connection for PTSD was no longer being pursued on appeal. As the Veteran has withdrawn the appeal regarding the issue of an effective date earlier than August 24, 2010 for the grant of service connection for PTSD, the Veteran has withdrawn the appeal as to this issue; hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to the issue of an effective date earlier than August 24, 2010 for the grant of service connection for PTSD, and it is dismissed. 2. An Initial 70 Percent Disability Rating for PTSD from August 24, 2010 through September 21, 2016 is Granted Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). The Veteran has appealed from the initial rating assigned for the service connected PTSD. In Fenderson v. West, 12 Vet. App. 119, 125 26 (1999), the United States Court of Appeals for Veterans Claims (Court) addressed a similar appeal and directed that such appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. The Court also directed that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Under Diagnostic Code 9411, a 50 percent rating will be assigned for a mental disability which is productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or 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 will be assigned for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to 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 work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating will be assigned for total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an 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. 38 C.F.R. § 4.130. The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. The schedular rating criteria rate by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the 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." See also Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (indicating that the Board should consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating). In Bankhead v. Shulkin, the Court held that evidence of more than thought or thoughts of ending one's life to establish the symptom of suicidal ideation is not required. "Suicidal ideation appears only in the 70 percent evaluation criteria. There are no analogues at the lower evaluation levels." Also, both "passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death." Bankhead v. Shulkin, 29 Vet. App. 10. In other words, a Veteran need not be at a risk, whether a high or low risk, of self-harm in order to establish the criteria of suicidal ideation. "[T]he presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas." Bankhead at 11. As discussed above, the Veteran and representative seek a higher initial disability rating of 70 percent for the initial rating period from August 24, 2010 through September 21, 2016. It is the Veteran and representative's contention that the PTSD symptoms affect social and occupational impairment to warranting the grant of a staged initial 70 percent disability rating as of September 22, 2016 were present throughout the entire initial rating period on appeal. The Veteran received a VA PTSD examination in September 2016. At that time the Veteran had a number of significant mental health symptoms, to include disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, an inability to establish and maintain effective relationships, and suicidal ideation. Further, the PTSD was noted to manifest as irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects (like or similar to impaired impulse control, such as unprovoked irritability with periods of violence). In the December 2016 rating decision granting service connection for PTSD, the RO found that the severity, frequency, and duration of such symptoms warranted a staged 70 percent initial disability rating from September 22, 2016, the date of VA examination. At the June 2021 virtual Board hearing, the Veteran testified that the social and occupational symptoms noted at the time of the September 2016 VA PTSD examination, in particular the symptoms of difficulty adapting to stressful circumstances, including work or a worklike setting, an inability to establish and maintain effective relationships, and irritability with periods of violence, were present during the entire initial rating period on appeal, from August 24, 2010. In particular, at the June 2021 virtual Board hearing, the Veteran testified that in 2012 he assaulted and choked a minor, who had been holding a baby, after the minor placed their feet on the furniture. The Veteran also testified that additional physical altercations happened with others around this time. While the Veteran did not testify to having altercations that resulted in violence prior to 2012, the Veteran did testify to having frequent homicidal ideations prior to 2012. Further, the Veteran credibly testified to isolating himself from others on or about 2011 out of fear that he would hurt someone, which is happened in 2012. As will be discussed below, the histories and findings indicated in treatment evidence is consistent with the Veteran's June 2021 testimony. The Veteran received a VA mental health examination in July 2014. At that time, the symptoms included difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a worklike setting. While the Veteran was not noted to have suicidal ideation at that time, the Veteran did indicate that when not taking psychiatric medications (which includes the period prior to March 2012) he would contemplate suicide. Per a November 2013 private treatment record, the Veteran conveyed having anger issues since separation from service. Subsequent December 2013 private treatment records noted that the Veteran's PTSD had a negative impact on personal relationships, and it was reported that the Veteran had a history of being violent towards or victimizing others, without serious injury or charges filed. At Social Security Administration (SSA) examination in October 2012, the Veteran conveyed having a few close friends, but stated that he did not communicate with others. The examiner assessed that the Veteran's overall symptomatology was severe in nature, the Veteran had little desire to engage with others, and that the Veteran would likely appear cold and aloof on a job site. A private examination report from October 2012 reflects that the Veteran was antisocial, impulsive, and had no contact with his family at that time. It was reported that the Veteran had frequent homicidal ideation prior to taking mental health medications in March 2012, and it was noted that the Veteran had choked an individual for putting their feet on a couch (consistent with the Veteran's June 2021 testimony). Further, the Veteran was found to have poor social skills and was unable to work. This other evidence of record is consistent with the Veteran's June 2021 testimony concerning the severity of the PTSD symptoms throughout the course of this appeal. A February 2011 VA treatment record noted that the Veteran was avoiding social gatherings, and a September 2012 VA treatment record reported that the Veteran had been in a physical altercation earlier that year. At that time the Veteran described himself as super angry when not on psychiatric medications, and conveyed being socially isolated. In a January 2011 statement, the Veteran advanced that prior PTSD symptoms had included suicidal thoughts and unexplained social behavioral changes. A VA treatment record from March 2010 specifically reports that the Veteran conveyed having a short fuse, and that he had lost interest in people and activities that he used to enjoy. In sum, VA has previously found that the symptoms noted at the time of a September 2016 VA PTSD examination, to include symptoms of difficulty adapting to stressful circumstances, including work or a worklike setting, an inability to establish and maintain effective relationships, suicidal ideation, and irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, which is like or similar to impaired impulse control, such as unprovoked irritability with periods of violence, warranted the grant of a staged initial 70 percent disability rating from September 22, 2016. During the course of this appeal, including in testimony at a June 2021 virtual Board hearing, the Veteran advanced that the aforementioned symptoms have been present during the entire initial rating period on appeal, from August 24, 2010. The other evidence of record, dating back to March 2010, is consistent with the Veteran's reports of symptoms and impairment. Based upon the above, after a review of all the evidence, lay and medical, the Board finds that, from August 24, 2010 through September 21, 2016, the severity, frequency, and duration of the symptoms of the service connected PTSD more nearly approximated occupational and social impairment with deficiencies in most areas, as required for a disability rating of 70 percent under Diagnostic Code 9411. For these reasons, resolving all reasonable doubt in favor of the Veteran, the Board finds that the lay and medical evidence shows that a higher initial disability rating of 70 percent is warranted for the service connected PTSD for the initial rating period from August 24, 2010 through September 21, 2016. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. Because a 70 percent initial disability rating for PTSD is being granted for the period from August 24, 2010 through September 21, 2016, the entire relevant initial rating period on appeal, the Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed a higher disability rating in excess of 70 percent. See 38 C.F.R. § 19.55 (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). For these reasons, any question of a higher initial disability rating in excess of 70 percent for the PTSD rating period on appeal is rendered moot with no remaining questions of law or fact to decide. See 38 U.S.C. § 7104 (2012); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the initial rating issue on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). 3. A TDIU from March 31, 2012 through September 21, 2016 is Granted Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a),(b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non service connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (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. 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 substantial 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). At the outset, the Board will address the TDIU rating period on appeal. In a December 2016 rating decision, the Veteran was awarded a TDIU from September 22, 2016. During the course of this appeal, the Veteran has advanced being unemployed since on or about February 2007; however, conflicting evidence of record indicated that the Veteran may have been substantially gainfully employed after February 2007. In September 2014, SSA issued a decision finding that the Veteran had become too disabled to work as of March 31, 2012. The Veteran and representative addressed this discrepancy at the June 2021 virtual Board hearing. At that time, the Veteran specifically testified that, "the last time I worked was 2012. I was a driver." Further, the Veteran's representative stated that the Veteran was making over the poverty threshold and was substantially gainfully employed prior to March 31, 2021. When clarifying the TDIU rating period on appeal, the representative explicitly stated that "we're not asking for potential entitlement to individual unemployability prior to the last day of employment." The SSA records and the attorney's summation of the facts clearly establish that the Veteran has been too disabled to work/not gainfully employed beginning on March 31, 2012. Based upon the above, the Board finds that the TDIU rating period currently on appeal has been limited to the period from March 31, 2012 through September 21, 2016. For the period from March 31, 2012 through September 21, 2016, the service connected disabilities met the combined disability rating eligibility criteria for a TDIU under 38 C.F.R. § 4.16(a). In the instant decision the Board grants a higher initial disability rating of 70 percent for the service-connected PTSD for the rating period from August 24, 2010 through September 21, 2016. As such, during the relevant TDIU period on appeal, from March 31, 2012 through September 21, 2016, the service-connected disabilities resulted in a combined disability rating of at least 70 percent, with at least one disability rated at 40 percent or more (PTSD rated as 70 percent disabling). In the December 2016 rating decision granting a TDIU from September 22, 2016, the RO made a favorable finding that the evidence supported that the PTSD symptoms alone supported the grant of a TDIU from September 22, 2016, the date the Veteran was awarded a staged initial 70 percent disability rating for the service connected PTSD. As discussed above, the RO granted a staged 70 percent disability rating from September 22, 2016 based upon the findings of a VA PTSD examination report dated September 22, 2016. Per the above discussion, in the instant decision the Board finds that the PTSD symptoms and degrees of social and occupational impairment assessed at the time of the September 22, 2016 VA PTSD examination have been present since prior to March 31, 2012. As such, the favorable finding of the RO in December 2016 that the PTSD symptoms diagnosed on September 22, 2016 alone would support a TDIU, when considered with the other evidence of record showing that such symptoms have existed since on or before March 31, 2012, supports that the Veteran first became entitled to a TDIU as of March 31, 2012, the day following the Veteran's last day of substantially gainful employment. For the above reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that the service-connected PTSD symptoms prevented the Veteran from maintaining substantially gainful employment for the period from March 31, 2012 through September 21, 2016; therefore, the Board finds that a TDIU is warranted for the earlier rating period from March 31, 2012 (day following the Veteran's last day of substantially gainful employment) through September 21, 2016 (day prior to the original grant of TDIU due to PTSD symptoms alone). 38 C.F.R. §§ 3.340, 3.341, 4.16. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.