Citation Nr: 21066063 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-58 787 DATE: October 28, 2021 ORDER An initial compensable evaluation for bilateral hearing loss is denied. An initial evaluation of 70 percent, but not in excess thereof, for anxiety disorder, for all periods prior to March 1, 2019 is granted. An evaluation in excess of 70 percent for major depression disorder with anxious distress, from March 1, 2019 is denied. A total disability rating based on individual unemployability (TDIU) from January 8, 2013 to March 1, 2019 is granted. FINDINGS OF FACT 1. The Veteran has exhibited no worse than Level I hearing loss in each ear. 2. For all periods on appeal prior to March 1, 2019, the Veteran's acquired psychiatric disability was productive of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood, but was not productive of total occupational and social impairment. 3. From March 1, 2019, the Veteran's acquired psychiatric disability is not productive of total occupational and social impairment. 4. The Veteran's service-connected disabilities have rendered him unemployable or unable to secure and follow a substantially gainful occupation effective January 8, 2013. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for bilateral hearing loss are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2020). 2. The criteria for an initial evaluation of 70 percent, but not in excess thereof, for anxiety disorder, for all periods prior to March 1, 2019 are met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2020). 3. The criteria for an evaluation in excess of 70 percent for major depression disorder with anxious distress, from March 1, 2019, are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2020). 4. The criteria for a TDIU from January 8, 2013 to March 1, 2019 are met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to July 1970. He was awarded the Combat Action Ribbon. This appeal is before the Board of Veterans' Appeals (Board) from April 2011, November 2013, and September 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2020, the RO granted the Veteran's TDIU claim, effective March 2019. Because the RO's decision only served as a partial grant of the Veteran's TDIU claim, the appeal period before March 2019 remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356, 360-61 (2018). The Board acknowledges that the Veteran, via his attorney, submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) in April 2021 purportedly seeking review under the Appeals Modernization Act (AMA) appeal process as to the issues of an effective date earlier than March 1, 2019 for entitlement to TDIU; an effective date earlier than March 1, 2019 for a 70 percent rating for major depressive disorder with anxiety; and a compensable rating for bilateral hearing loss. However, the Veteran's attorney indicated that the 10182 was being filed "out of an abundance of caution" and stated that these issues were pending in the legacy system, citing the April 2020 SSOC. Moreover, the Veteran's attorney did not check the SOC/SSOC opt in box on the VA Form 10182 indicating that she was withdrawing the legacy appeal in order to opt into the AMA appeals process. Further, the April 2021 VA Form 101082 was received subsequent to certification to the Board under the legacy system. Thus, the Board does not find that the April 2021 VA Form 10182 was adequate to opt into the AMA appeals process and will decide the appeal under the legacy appeal process. In his November 2016 substantive appeal, the Veteran requested a videoconference hearing before the Board. Such a hearing was scheduled in July 2018, but before it occurred the Veteran withdrew his hearing request via a July 2018 letter from his representative. After the Board's remand, the Veteran again requested a videoconference hearing via a May 2020 letter from his representative. Such hearing was scheduled for August 2021, but the Veteran again indicated that he had changed his mind via an August 2021 letter from his representative. In December 2018, the Board remanded the Veteran's appeal with instruction to schedule VA examinations. He underwent VA examinations in February 2019 and March 2019. The Board also remanded the issue of entitlement to service connection for right ear hearing loss, but this appeal was granted in full by an April 2020 rating decision and is thus no longer before the Board. The Board is therefore satisfied that the instructions in its December 2018 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 1. Entitlement to an initial compensable evaluation for bilateral hearing loss The Veteran claims an increased rating for his bilateral hearing loss. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. 38 C.F.R. § 4.85. Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of pure tone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent 9 categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level V and the poorer ear had a numeric designation of Level VII the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that when the pure tone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. The Veteran underwent a VA examination in September 2014. He reported that his wife sometimes has to call him three or four times before he hears her. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 5 15 20 35 18.75 LEFT 10 20 50 75 38.75 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. He was diagnosed with bilateral sensorineural hearing loss. In his November 2014 notice of disagreement, the Veteran's representative argued that his hearing loss warranted a higher rating based on his VA audiologist's finding that it was severe and warranted hearing aids in 2013. In August 2016, the representative provided a private audiogram from April 2013. The United States Court of Appeals for Veterans Claim (Court) has found that the Board can interpret audiometric graphs. See Kelly v. Brown, 7 Vet. App. 471 (1995). The Board interprets the pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 10 30 30 20 LEFT 10 25 50 70 38.75 Speech audiometry was not conducted. He was diagnosed with asymmetric sensorineural hearing loss. The Veteran underwent another VA examination in February 2019. He reported difficulty hearing clearly. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 5 10 25 45 21.25 LEFT 15 20 55 55 36.25 Speech audiometry revealed speech recognition ability of 100 percent in both ears. He was diagnosed with bilateral sensorineural hearing loss. VA treatment records reflect that in August 2019 the Veteran reported hearing loss, left worse than right. Specific pure tone thresholds are not of record, but the audiologist indicated severe sensorineural hearing loss in the left ear from 3000 to 8000 hertz, and mild to severe sensorineural hearing loss in the right ear from 4000 to 8000 hertz. All thresholds were noted to be within 10 decibels of his 2014 evaluation with the exception of 3000 hertz in the left ear which increased by 25 decibels. Applying these shifts to his September 2014 results, his pure tone thresholds were no more than as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 25 30 45 28.75 LEFT 20 30 75 85 52.5 Speech recognition was 100 percent bilaterally. He was diagnosed with bilateral sensorineural hearing loss. The Board finds that compensable evaluation is not warranted for the Veteran's bilateral hearing loss. His right ear speech recognition score has not been measured as less than 100 percent, and his average pure tone threshold has not been measured as higher than 28.75 decibels, which results in a numeric value of Level I hearing loss. His left ear speech recognition score has not been measured as less than 96 percent, and his average pure tone threshold has not been measured as higher than 52.5 decibels, which also results in a numeric value of I. Table VII indicates that a noncompensable rating is warranted for those values. Indeed, compensable ratings are not available unless at least one ear exhibits Level IV hearing loss or worse. Moreover, none of the record audiological findings qualify as an exceptional pattern of hearing as defined by 38 C.F.R. § 4.86. For these reasons, the Board finds that a compensable evaluation is not warranted for the Veteran's hearing loss. 2. Entitlement to an initial evaluation for anxiety disorder, in excess of 10 percent prior to September 27, 2011, in excess of 30 percent from September 27, 2011 to February 12, 2013, and in excess of 50 percent from February 12, 2013 to March 1, 2019 3. Entitlement to an evaluation in excess of 70 percent for major depression disorder with anxious distress, from March 1, 2019 The Veteran claims increased ratings for his mental health disability. The Veteran's disability was initially rated as anxiety disorder under 38 C.F.R. § 4.130, Diagnostic Code 9413. It is currently rated as major depression disorder under 38 C.F.R. § 4.130, Diagnostic Code 9434. Both codes are evaluated under a general rating formula for mental disorders. Under the general rating formula, a 10 percent rating is warranted 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. A 30 percent rating is warranted 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted 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; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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 inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In a statement associated with his September 2010 claim, the Veteran reported startle reflex to loud sounds, such as a backfiring truck, a firecracker, or a thunderstorm. He reported bad dreams, difficulty sleeping, moments of depression, and self-isolation. VA treatment records reflect that in October 2010 the Veteran reported mood issues and anger for years. He described bad dreams and agitation when his grandchildren visited. He stated that sometimes he had anxiety attacks. He reported waking up every two hours. He was diagnosed with a mood disorder. In a November 2010 statement, the Veteran's wife described his reactions to loud sounds. She reported that he was moody and depressed, staying alone in his room when their grandchildren visit. She described mood swings, nightmares, and sleepless nights. In a second November 2010 statement, the Veteran's daughter described fits of rage, mood swings, self-isolation, and reactions to loud noises. VA treatment records reflect that in January 2011 the Veteran reported anger problems, social isolation, nightmares, anxiety attacks, and becoming agitated around his grandchildren. He described sleep that was frequently interrupted. He was diagnosed with anxiety disorder. In March 2011 he reported improved symptoms, stating that his medication was helping, though he continued to have low frustration tolerance. The Veteran underwent a VA examination in March 2011. He reported anger problems and daily moderate anxiety. He reported good relations with his wife, three children, and six grandkids, though they sometimes tested his nerves. He described leisure pursuits including television and playing poker with family and friends. He was employed at Walmart but was planning to retire soon, hoping to work part-time. He was diagnosed with anxiety disorder productive of symptoms controlled by continuous medication and not severe enough to interfere with occupational and social functioning. VA treatment records reflect that in September 2011 the Veteran reported that his main complaint was being "edgy." He reported nightmares once or twice per week. His psychiatrist noted that his main symptoms were increased arousal, irritability, and lack of sleep. In a statement received by VA on September 27, 2011, the Veteran reported that his symptoms were more severe than reflected by his current rating and asked that the previous rating decision be reconsidered. In a November 2011 statement, the Veteran's wife described him coming home complaining about his coworkers and supervisors. She again described his reactions to loud noises and self-isolation from his grandchildren. She reported mood swings, angry outbursts, and sleepless nights. VA treatment records reflect that in January 2012 the Veteran reported that he took his medication only as needed. He described himself as easily arousable. His psychiatrist determined that he did not need appointments as frequent as they were. The Veteran underwent another VA examination in March 2012. He reported good relationships with his wife and family. He stated that he played poker with friends and occasionally went out to dinner with his wife. He retired in March 2011 and now worked part-time at Walmart. His treatment records noted recurrent dreams, intrusive memories, arousability, and irritability, with no need for frequent appointments. The examiner noted symptoms of anxiety. He diagnosed anxiety disorder productive of 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 which are controlled by medication. VA treatment records reflect that in July 2012 the Veteran reported continued bad dreams and irritability. In January 2013 he reported dreams 3-4 times per week and intrusive thoughts. He described himself as "real jumpy" when approached from behind. He stated that he got fed up with his job and quit two weeks ago. He reported getting along fine with his wife, stating that she kept him going. In a statement received by VA on February 12, 2013, the Veteran again requested that VA reconsider its previous rating decision based on new treatment records. VA treatment records reflect that in May 2013 the Veteran requested medication for his dreams, which were frequent and woke him up. In August 2013 he reported that he spent his days working around the house, at times arguing with his wife or getting "edgy" with his grandchildren. In November 2013 he reported lessened pressure since he quit working. His psychiatrist diagnosed him with anxiety disorder in partial remission. The Veteran underwent another VA examination in November 2013. He described being "jumpy" with anxiety, irritability, restlessness, sleep disruption, feelings of worthlessness, low libido, and reduced interest and pleasure in activities. He reported that his anxiety was constant, moderate, and well-controlled by medication. Impairment was social, recreational, and familial. He stated that he left his job at Walmart because he felt like they were talking about him and laughing. He said he got into problems with management and decided to quit before he hurt someone. The examiner noted symptoms of depressed mood, anxiety, and chronic sleep impairment. He was diagnosed with anxiety disorder productive of 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 which are controlled by medication. Specifically, the examiner noted mild to moderate symptoms well-controlled by prescriptions and not precluding occupational functioning. VA treatment records reflect that in May 2014 the Veteran reported continued intrusive thoughts and nightmares. He reported frequent arguments with his wife, most recently about having left their granddaughter's graduation party. He described getting into verbal altercations with others. Later that month, he and his wife underwent a session of couples' therapy, at which he reported anxiety, frequent nightmares, hypervigilance, and heightened arousal around others which led him to minimize socialization and keep to himself to avoid feeling agitated, anxious, or irritable. His symptoms had worsened since he stopped working. They stopped after one session. In November 2014 he still had daytime intrusive memories, easy irritability, avoidance, and somewhat decreased sleep. His diagnosis was no longer in partial remission. In May 2015 his mood was stable, but his sleep remained chronically low. The Veteran submitted a June 2016 evaluation by a private psychologist based on a review of the record and a telephonic interview. He reported anxiety, flashbacks, nightmares, panic attacks, hyperarousal, hypervigilance, exaggerated startle response, insomnia, fatigue, difficulty concentrating, irritability, panic, chronic sleep impairment, and brief dissociative states. The psychologist found the Veteran to be oriented to time, space, identity, and location. He noted deficits to both short-term and long-term memory. No hallucinations were noted. Speech was logical, although under duress the Veteran displayed disorganization and flight of ideas. He also displayed symptomatology of obsessional ritualistic thought. The psychologist diagnosed posttraumatic stress disorder (PTSD), depressive disorder, and anxiety disorder causing severe levels of impairment and resulting in deficiencies in most areas, such as work, family relations, judgment, thinking, and mood. He stated that the PTSD was inextricably intertwined with the anxiety disorder and major depressive disorder. The psychologist opined that the symptomatology of the Veteran's service-connected mental health conditions prevented him from being able to maintain any gainful employment since he left his job in January 2013. VA treatment records reflect that in June 2016 the Veteran reported recurring nightmares and disturbed sleep. He stated that he avoided war movies and crowds and that he gets anxious and upset with certain television shows. He denied any other current mental health concerns. He was diagnosed with anxiety disorder. In August 2016 he reported that his change in medication was working out and that his anger management classes were teaching him how to cope with his irritability. In an August 2016 email, the Veteran's representative stated that he was seeking an initial evaluation of 70 percent for his mental health disability, along with a TDIU effective January 2013. The same was stated in his November 2016 substantive appeal. In a November 2016 statement, the Veteran's wife reported that he resigned from Walmart due to his mental health problems. She stated that she was worried that he was going to hurt someone at work, as he often came home from work angry and hostile with his coworkers and superiors. He told her that everyone on the job was always talking about him; she described this as paranoid. VA treatment records reflect that in December 2016 the Veteran reported that he does not do anything but watch television. In September 2017 he reported that he still had easy irritability. In March 2018 he reported being upset that he ran over his wife's foot in the driveway by mistake one week prior. His sleep remained somewhat reduced. In June 2018 he reported that he remained socially avoidant and did not go places. He described a recent confrontation at a gas station where another driver wanted access to a pump. He reported he was getting along fairly with his wife. In a July 2018 statement, the Veteran reported that over the years he had been reluctant to fully open up to his medical providers. He stated that his symptoms had been severe in spite of treatment. He reported self-isolation and minimal interaction with his wife. He needed daytime naps because of his nightly sleep difficulties and nightmares. He described anxiety and irritability with angry outbursts, on one occasion running over his wife's foot with his car. He reported frequent periods of depression causing days where he lacked the motivation to maintain his hygiene. He stated that his mental health kept him from being able to work. VA treatment records reflect that in October 2018 the Veteran reported stress about an upcoming trip to Texas for a wedding. He stated that he liked to stay home and that his wife had to push him even to go shopping. In February 2019 he reported that he got along well with his wife and saw his daughter and grandson often. He reported getting irritable at times. The Veteran underwent another VA examination on March 1, 2019. He reported that he struggled to make and maintain social relationships. He stated that he currently had okay relationships with family members. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining relationships, difficulty adapting to stress, suicidal ideation, irritability, and intermittent ability to perform activities of daily living, including maintenance of minimal personal hygiene. He was diagnosed with moderate to severe recurrent major depressive disorder with anxious distress productive of occupational and social impairment with reduced reliability and productivity. VA treatment records reflect periodic therapy since March 2019, reporting symptom levels consistent with those prior to March 2019. The Board finds that staging is not appropriate for the periods on appeal. The Veteran's currently assigned increases on September 27, 2011 and February 12, 2013 were based on the dates that VA received claims for increases. The Veteran, however, clearly characterized his submissions as requests for reconsideration of the prior rating decisions, submitted within the one-year appeal period. These were not new claims for disabilities that worsened but an expression of disagreement with an already assigned rating. As such, his appeal was pending since his initial rating was assigned. As there is no indication of worsening symptoms during these periods, staging of his rating is not appropriate. Similarly, the Veteran's currently assigned increase effective March 1, 2019 was based on the VA examination conducted that day. The Board finds, however, that the symptoms described to the VA examiner were conveyed to VA earlier in a July 2018 statement, where he described a lack of motivation to maintain hygiene. He further stated that he had been reluctant to fully open up to his medical providers and insisted that his medication helped but did not fully control his symptoms. Moreover, while the symptoms described are not identical, the June 2016 private evaluation explicitly found that the Veteran met the criteria for a 70 percent rating, nearly three years prior to the March 2019 VA examination. For these reasons, the Board finds that staging is not appropriate for the periods on appeal. Affording all benefit of the doubt to the Veteran, the Board finds that his acquired psychiatric disability was productive of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood for the entirety of the appeal period. The Board finds that all of the Veteran's psychiatric symptoms are part of his service-connected major depressive disorder. See Mittleider v. West, 11 Vet. App. 181 (1998). An initial 70 percent evaluation for all periods prior to March 1, 2019 is therefore granted. The Board further finds that an evaluation in excess of 70 percent is not warranted for the Veteran's acquired psychiatric disability. Higher ratings are available for total occupational and social impairment. The evidence weighs against such a finding. The private evaluation submitted by the Veteran in June 2016 indicates that the Veteran meets the criteria for a 70 percent rating. The report indicates that he is unable to work, but there is no finding of total social impairment. This finding is consistent with the Veteran's continued reports of maintaining relationships with his wife and family, despite the strain his symptoms produce. No VA examiner or other evaluator has found that the Veteran's symptoms are productive of total social impairment. While he has reported lapses in personal hygiene, there is no evidence that these lapses were productive of any social consequences greater than annoying his wife. Although the June 2016 psychologist found that under duress the Veteran displayed disorganization and flight of ideas, there is no evidence of gross impairment in thought process. There is no evidence of grossly inappropriate behavior, a disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. Nor is there evidence of persistent hallucinations or delusions. Moreover, in an August 2016 email to VA, the Veteran's representative stated that he was seeking a 70 percent rating for the entirety of the appeal period, which the Board herein grants. For these reasons, the Board finds that an evaluation in excess of 70 percent is not warranted for the Veteran's acquired psychiatric disability. 4. Entitlement to a TDIU prior to March 1, 2019 The Veteran seeks a TDIU. He contends that his service-connected disabilities, when considered in combination, render him unemployable. He is already in receipt of a TDIU effective March 1, 2019. He now seeks a TDIU effective January 8, 2013, the date he stopped working. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined 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 the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (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. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Upon implementation of this Board decision, the Veteran is in receipt of a 70 percent rating for his acquired psychiatric disability and a noncompensable rating for malaria for the entirety of the appeal period. Effective February 2014, he is also in receipt of a 10 percent rating for tinnitus and a noncompensable rating for bilateral hearing loss. His combined schedular rating is thus 70 percent for the entirety of the appeal period, and he meets the eligibility threshold for a schedular TDIU under 38 C.F.R. § 4.16(a). In February 2013, the Veteran initially claimed a TDIU, stating that his mental health disability required him to quit his part-time work at Walmart. He also indicated that by working part time he had been underemployed for at least one year. In his application for a TDIU, he stated that he became too disabled to work on January 8, 2013 due to PTSD. He stated that he had been working at Walmart since July 2004 for 24 hours a week earning $14,000 per year. He indicated that he had two years of high school education. The Board finds that the evidence is at least in equipoise that the Veteran's service-connected disabilities have rendered him unemployable or unable to secure and follow a substantially gainful occupation effective January 8, 2013. He is currently in receipt of a TDIU effective March 1, 2019. The April 2020 rating decision granting the TDIU assigned the effective date because at that time it was the first date on which the Veteran's combined rating rendered him eligible for a schedular TDIU under 38 C.F.R. § 4.16(a). The Board, however, herein grants an initial rating of 70 percent for his acquired psychiatric disability, and he thus now meets the threshold on the day he left his job, January 8, 2013. As discussed above, the Board finds that the Veteran's disabilities have not materially worsened between January 2013 and March 2019. For these reasons, the Board finds that the evidence is at least in equipoise that the Veteran's service-connected disabilities have rendered him unemployable or unable to secure and follow a substantially gainful occupation effective January 8, 2013, and a TDIU effective that date is therefore granted. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, 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.