Citation Nr: A21019079 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 210706-170421 DATE: November 30, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with anxiety disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. 2. The Veteran's service-connected disabilities do not render him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for PTSD with anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340. 3.341, 3.400, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps (USMC) from November 1965 to November 1967, during which time he experienced live combat in the Republic of Vietnam. This matter initially comes before the Board of Veterans' Appeals (Board) from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The procedural issues in this matter are quite lengthy and complex; the Board will thus explain the multiple appeal streams below. The November 2012 rating decision, issued in the legacy system, specifically denied service connection for posttraumatic stress disorder (PTSD). However, in that decision the RO also granted service connection for anxiety and assigned a 30 percent disability rating for the disorder. In December 2012, the Veteran filed a notice of disagreement (NOD) claiming that he was due a rating in excess of 30 percent for his anxiety disorder and claiming that he was due entitlement to service connection for PTSD. In October 2016 the VA issued a statement of the case (SOC) continuing the 30 percent rating for the Veteran's anxiety disorder and continuing the denial of service connection for PTSD. The Veteran appealed this decision to the Board. In February 2019, the Board issued a decision in the legacy system, denying an increased rating for the Veteran's anxiety disorder and denying service connection for PTSD. The Veteran appealed the Board's February 2019 legacy denial to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court vacated the February 2019 Board decision and remanded the case back to the Board for development consistent with their decision. The Board subsequently issued a decision in June 2021 in which it granted an initial 70 percent rating for anxiety disorder with PTSD and remanded a claim for entitlement to a TDIU. That claim remains pending in the legacy system and will not be addressed by the Board herein. In February 2020, the Veteran separately submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection for PTSD, most recently addressed in the February 2019 Board decision. This request was properly filed in the modernized review system, also known as the Appeals Modernization Act (AMA). In April 2020, the agency of original jurisdiction (AOJ) issued a supplemental claim decision in the AMA system which found that new and relevant evidence had not been received and thus declined to readjudicate the service connection claim. The Veteran filed a VA Form 10182 in July 2020, appealing the April 2020 AMA decision denying his entitlement to service connection for PTSD. In January 2021, the issue came before the Board in the AMA system. The Board issued an AMA decision finding that new and relevant evidence had been received and granting entitlement to service connection for PTSD. The AOJ then issued a decision in January 2021 implementing the Board's decision, in which it recharacterized the Veteran's service-connected psychiatric disability as PTSD with anxiety disorder and continued the evaluation of 30 percent. In March 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the January 2021 decision continuing a 30 percent rating for the Veteran's psychological disorders. In May 2021, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of its January 2021 decision. In that decision, the AOJ continued the initial 30 percent rating for PTSD with anxiety disorder. In July 2021, the Veteran filed the VA Form 10182 currently on appeal, selecting the evidence submission docket, stating the issue of disagreement to be the evaluation of PTSD with anxiety rated at 30 percent, as adjudicated in the May 2021 decision. Also in that VA Form 10182, the Veteran raised the issue of entitlement to a TDIU on the basis of his PTSD with anxiety disorder. The Board may only consider the evidence of record at the time of the January 2021 rating decision, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. The Board notes that the July 2021 VA Form 10182 specifically appealed the 30 percent rating assigned to the Veteran's PTSD with anxiety disorder. The Board also notes that in the June 2021 legacy decision referenced above, the Board granted an initial 70 percent rating for PTSD with anxiety disorder. Thus, as the initial rating is now 70 percent, the issue currently on appeal before the Board is entitlement to an initial rating in excess of 70 percent for PTSD with anxiety disorder, since the initial rating has already been increased by way of the June 2021 Board decision and that increase has been implemented by the AOJ. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant is generally presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, although an increase has been granted, the issue of entitlement to an initial rating in excess of 70 percent for PTSD with anxiety disorder remains in appellate status in the AMA system, along with the claim for entitlement to a TDIU. 1. Entitlement to an initial rating in excess of 70 percent for PTSD with anxiety disorder Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. Where there is a question as to which of two evaluations shall be applied under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Third, the Board must weigh the probative value of the evidence considering the entirety of the record. The Veteran's PTSD with anxiety disorder has been evaluated under the General Rating Formula for Mental Disorders and assigned an initial 70 percent disability rating under Diagnostic Code 9411. 38 C.F.R. § 4.130. Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted 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 that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability 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. Id. Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list but rather serve as examples of the type and degree of the symptoms or their effects that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. In an April 2011 statement, the Veteran reported that after his return from Vietnam, he had constant nightmares, spatial disorientation, short and long-term memory problems, deficiencies in judgment and thinking, mood swings, and difficulty with stressful situations. He also reported sleeping only five hours per night and reported having been arrested 20 times or more for involvement in bar fights. Furthermore, he had to "make sure everything is locked up every night" and that he sleeps "with a gun by [his] side every night." Also, he had been in Alcoholics Anonymous (AA) for 26 years. He is self-employed because he cannot work well with others. In an October 2011 letter, his private physician, Dr. S. T., D.O, stated that for over 20 years, he had treated and monitored the Veteran closely since he had a lot of problems with acid reflux disease, sleep disorder, difficulty with stress, persistent, recurring dream of being overrun by enemy forces and was troubled with emotional issues, since returning from Vietnam. Dr. S. T. opined "that was a big part of his addiction for drug and alcohol that he suffered from since he has been back [from Vietnam] as an attempt to self-medicate." Dr. S. T. also noted that the Veteran had shown "a lot of symptoms of PTSD..." Additionally of record are numerous mental status examinations (MSE) finding the Veteran to be continually alert, fully oriented, and cooperative. He demonstrated no signs of psychomotor agitation or psychomotor retardation. His mood was often "I'm good," with an appropriate range of affect demonstrated. He denied current suicidal or homicidal ideation when directly asked. His speech production was within normal limits, and his speech content was linear, easy to follow, and did not reflect any obvious signs of a thought disorder. Private treatment records dated in August 2017, May 2018, and December 2018 similarly found the Veteran to be alert with normal affect and oriented to time, place, and person. He had "good judgment." Additionally, VA treatment records note that the Veteran in May 2019 reestablished treatment at the VA facility to address his acquired psychiatric disorder symptoms. During that session, he reported recurrent nightmares and "anger issues." He further reported being very active in the AA community, maintaining sobriety from alcohol and cocaine since 1985. The clinician noted that "[a]dding to the clinical impression is significant grief related to multiple recent deaths of friends he served with [in Vietnam]." A mental status examination found him alert, fully oriented, easily engaged, and cooperative. He appeared his stated age and did not demonstrate any signs of psychomotor agitation or psychomotor retardation. His stated mood was "I'm good," with an appropriate range of affect demonstrated. He denied current suicidal/homicidal ideation when directly asked. His speech production was within normal limits, and his speech content was linear, easy to follow, and did not reflect any obvious signs of a thought disorder. Similarly, two MSEs of June 2019 and August 2019, and another MSE dated in February 2020, were consistent with the previous findings of May 2019. In later July 2019, however, clinical notes reflected that the Veteran endorsed moderate amounts of anger/irritability that "showed in his voice" but rarely became physical. He reported that he did not engage in risk-taking behavior at this time in his life while acknowledging prior issues with picking fights with others. He reported tending to overreact if someone came up from behind him. He also reported a routine of "watching everything around me" 100 percent of the time. He reported any problems with his ability to concentrate, but sleep was disrupted with difficulty staying asleep. He woke up on average twice per night due to unexpected noise and averaged six hours of sleep in 24 hours. The clinical psychologist diagnosed him with PTSD. The Veteran underwent an Initial PTSD examination in August 2012. He reported getting along with his only living sibling, his sister. He had two brothers who died. He also reported getting along with childhood friends, and he continued to make friends in AA, which he had been attending for 27 years (4-6 meetings per week). He sponsored six other people. The Veteran also reported getting into numerous bar fights and being charged three with three felonies therefor, "but never did time." The Veteran has been being married four times. His marriage to his current wife has lasted for 24 years. He attributed the failure of the first three marriages to "drinking and other associated behavior." He reported owning his own contracting basement waterproofing business for 38 years, where he prepares lots for development. He was, however, no longer involved with the day to day operations of the company. The examiner diagnosed anxiety disorder and depressive disorder, secondary to anxiety disorder and manifested by sadness. The examiner noted that he was able to differentiate the symptoms. Regarding the level of occupational and social impairment, the examiner determined that a mental condition has been formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The symptoms of his disability included depressed mood, anxiety, and exaggerated startle response, absent violence. The examiner noted that the Veteran was capable of managing his financial affairs. In response to the Veteran's complaints of having sleep problems "due to PTSD," the examiner provided an addendum opinion in October 2012. He specifically noted that the Veteran did not appear to have any clinically significant sleep issues. In August 2015, the Veteran was afforded a Mental Disorders examination. He reported that he and his wife of 27 years get along well. He remained close with his sister, who lived in Nevada, and living childhood friends. Several of his childhood friends and with whom he served in the military, "but for two," have passed away from cancer. He reported an increase in overall sadness and anger towards the military-related to the loss of his friends. He remained active in AA, attending meetings four to six times per week for it is a strong source of social support for him. The Veteran reported having had "fleeting" suicidal thoughts since returning home from Vietnam. He, however, had never had a plan or intent to hurt himself. He reported feeling that there were enough "things keeping (him) safe" to feel concerned about any suicidal concerns. He denied homicidal ideation. The examiner diagnosed Other Specified Trauma and Stressor-Related Disorder and noted that although the Veteran was diagnosed with anxiety disorder and depressive disorder on the initial PTSD VA evaluation on August 13, 2012, it was when mental health providers were still using DSM-IV diagnoses. The examiner stated that the diagnosis of Other Specified Trauma-and Stressor-Related Disorder should not be considered a change in diagnosis as much as a refinement in diagnosis given updated DSM 5 diagnostic criteria. Regarding relevant occupational and educational history, the examiner noted that the Veteran continued to own a basement waterproofing and development contracting company, but he no longer was involved with the day-to-day operations of the company. "He considers himself "semi-retired with too much time on his hands to think about things," for before, he used to deal with psychological distress by "burying himself in work." Regarding relevant mental health history, the examiner noted that the Veteran continued to rely on AA meetings for emotional support, attending meetings four to six times per week. He was not engaged in any formal psychological or psychiatric treatment. The Veteran reported having had "fleeting" suicidal thoughts since returning home from Vietnam but never had a plan or intent to hurt himself. He reported that he felt that there are enough "things keeping (him) safe" to feel concerned about any suicidal concerns. The Veteran denied homicidal ideation, any hallucinatory or delusional experiences. The examiner noted that the following symptoms applied to the Veteran's disorder: anxiety, suspiciousness, and disturbances of motivation and mood. The examiner also noted that a mental condition had been formally diagnosed, but the symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran was found to be able to manage financial affairs. After a review of the evidence presented above, the Board finds that the frequency, severity, and duration of the Veteran's PTSD with anxiety symptoms reported or shown are suggestive of occupational and social impairment with deficiencies in most areas, the level of impairment contemplated by the currently assigned initial 70 percent rating. As total social and occupational impairment has not been shown, an initial 100 percent rating is not warranted for the Veteran's PTSD with anxiety disorder. In so finding, the Board notes that the Veteran in April 2011 reported being in AA for 26 years, which serves as a strong source of social support for him, with his attendance in meetings four to six times per week. Further, after his return from Vietnam, he had constant nightmares, spatial disorientation, short and long-term memory problems, deficiencies in judgment and thinking, mood swings, difficulty with stressful situations, sleeping only five to six hours per night, being arrested over 20 times for fighting, and getting three felonies therefor. Moreover, he exhibited some compulsive behavior with constantly making sure everything was locked up every night, sleeping "with a gun by [his] side every night," and "watching everything around me" 100 percent of the time. In October 2011, his private physician, Dr. S. T., who has treated the Veteran for over 20 years, provided a statement attesting that he had a sleep disorder, difficulty with stress, persistent, recurring dreams of being overrun by enemy forces, and was troubled with emotional issues, since his return from Vietnam. All these symptoms, opined Dr. S. T., was "a big part of his addiction to drug and alcohol that he suffered [with] in an attempt to self-medicate since he has been back [from Vietnam]." In his August 2015 VA examination, although he reported that he had never had a plan or intent to hurt himself and denied homicidal ideation, he reported having had "fleeting" suicidal thoughts since returning home from Vietnam. These symptoms all equate to a 70 percent disability rating for his PTSD with anxiety disorder. However, the Veteran has not been shown to have persistent delusions or hallucinations or grossly inappropriate behavior, nor has he been shown or found to demonstrate a persistent danger of hurting himself or others. His thought processes and communication have not demonstrated gross impairment, nor has he shown even an intermittent inability to perform activities of daily living. He has not been shown to be disoriented to time or place or to demonstrate memory loss for the names of his close relatives, his own occupation, or his own name. In short, he has demonstrated none of the identified symptoms, nor any symptoms of like severity, to warrant a 100 percent rating under the General Rating Formula for Mental Disorders. Therefore, based on the above, the Board finds that the 70 percent rating currently assigned contemplates the Veteran's frequency, severity, and duration of his acquired psychiatric symptoms. Thus, entitlement to an initial disability rating in excess of 70 percent is denied. The evidence of record during this period shows that the Veteran's acquired psychiatric disorder is not more closely described by both total occupational and total social impairment during the period. The risk of self-harm is contemplated by the 100 percent criteria, which addresses whether one is a persistent danger to himself or others. Bankhead v. Shulkin, 29Vet. App.10 (2017). Here, the cumulative evidence of record does not show severity enough to cause both total occupational and total social impairment. Further, no VA clinician, examiner, nor private clinician has found the Veteran to be a persistent danger of hurting himself or others. The numerous MSEs conducted during this period noted the Veteran's continuous denial of current suicidal/homicidal intent or plan. The Veteran has endorsed the inability to concentrate, chronic sleep impairment, depressed mood, anxiety, exaggerated startle response, suspiciousness, and disturbances of motivation and mood, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, difficulty in understanding complex commands, and impaired impulse control, total social impairment is not shown. "Total" is defined as "whole, not divided; full; complete" and "utter, absolute." Black's Law Dictionary 1498 (7th ed. 1999). As the most probative evidence of record does not show total social impairment, the 100 percent rating is not warranted. During the appeal period, the Veteran reported being married for over twenty-five years to his fourth wife and getting along well with his only living sibling and childhood friends. He also reported that he continued to make friends in AA, where he has been attending for over 27 years, at four to six meetings per week, and even sponsoring six other people within that time. Further, although he reported getting into numerous bar fights and being charged with three felonies, during the latter part of the appeal, specifically in a July 2019, treatment session he reported that his anger now hardly became physical and that he did not engage in risk-taking behavior, including picking fights with others, as he did in the past. This evidence supports a finding that he is not totally and completely socially impaired due to his PTSD. Given the frequency, nature, and duration of the Veteran's symptoms, the Board finds that they do not result in total occupational and total social impairment for the period on appeal. They do not more closely approximate the types of symptoms contemplated by the 100 percent rating, and therefore, an initial 100 percent rating is not warranted. Vazquez-Claudio, 713 F.3d at 114 (holding 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"). In sum, the Board finds that an initial 70 percent rating during the entire appeal period most closely describes the Veteran's symptoms from his PTSD with anxiety disorder. The probative evidence of record does not show that the particular symptoms associated with the higher percentage or others of similar severity, frequency, and duration result in both total occupational and total social impairment. Thus, a 100 percent rating is not warranted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) When entitlement to a TDIU is raised during an appeal for an increased rating, it is considered part and parcel of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). In such a situation, the claim for TDIU has the same appeal period as that of the increased rating claim. The Veteran here seeks entitlement to a TDIU. He contends that he is self-employed and running his own business because he cannot work well with others due to his service connected psychological disorders, diagnosed as PTSD with anxiety disorder. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. Id. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: PTSD with anxiety disorder (rated 70 percent, from April 2011); prostate cancer status post brachytherapy (rated 0 percent from July 2006 to August 2018 and 40 percent from August 2018); erectile dysfunction associated with prostate cancer status post brachytherapy (rated 0 percent from July 2006); gastroesophageal reflux disease (GERD) associated with PTSD with anxiety disorder (rated 0 percent from April 2011); and hypertension associated with PTSD with anxiety disorder (rated at 0 percent from December 2012). Based on the forgoing, the Veteran has at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is not warranted. Entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). Additionally, if obtained in the case, an opinion from the Director, Compensation Service, is considered an AOJ decision; it is NOT considered evidence, and therefore should not weigh against the other evidence of record. Wages v. McDonald, 27 Vet. App. 233 (2015). As discussed in Withers v. Wilkie, 30 Vet. App. 139 (2018), the term "sedentary employment" is not defined in statute or regulation, and there is no requirement that it be used. However, if it is used, the Board should explain the meaning of sedentary work on a case-by-case basis as derived from the term and how the term applies to the Veteran's specific educational and occupational history. Similarly, if an examiner used the term, the Board should explain how the term is being applied to the Veteran's specific disability picture and vocational history. As a general matter, the Board takes note that the term "sedentary" is defined as "doing or requiring much sitting" or "not physically active." Merriam-Webster's Collegiate Dictionary 1123 (11th ed. 2012). It also means "1. Sitting habitually; of inactive habits. 2. Pertaining to a sitting posture." Dorland's Illustrated Medical Dictionary 1687 (32nd ed. 2012). However, as stated above, the meaning of sedentary work is to be determined on a case-specific basis. The Veteran's record states that he graduated high school with good performance in math but struggled in reading and writing, potentially caused by an undiagnosed learning disability. The Veteran then entered the USMC and was deployed to Vietnam where he worked as a radio operator from November 1965 to November 1967. Upon his return, he worked as a salesman from 1967 to 1975. From 1975 to present day the Veteran has owned his own construction company, specializing in basement waterproofing. The Veteran participated in hard labor and construction from 1975 to 1987 but now reports that he no longer is involved in the day-to-day operations and considers himself to be "semi-retired." The Board notes that the Veteran has not submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, which would offer additional vital information on the Veteran's education, work history, skills, training, income levels, and other pertinent information regarding the Veteran's employment history. No evidence of record offers information on the Veteran's yearly income or salary. Nor does the evidence of record refer to any accommodations being received at work. Therefore, the Board is unable to determine that the Veteran's employment could be classified as "marginal." The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his prostate cancer status post brachytherapy. In October 2006 the Veteran was examined at The Ohio State University Medical Center for his prostate cancer. On the examination he stated that he used to travel long distances on job related activity but has not been able to do so anymore due to his urgency of urination. The Veteran also offered a lay statement in August 2018 in which he stated that due to his prostate condition he has a need to urinate every half hour which in turn disturbs his sleep. No mention is made as to how it impacts his workday. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his PTSD with anxiety disorder. In March 2011, the Veteran offered a lay statement in which he reported that he is self-employed in the basement waterproofing business because he is unable to work well with others. In August 2012 the Veteran underwent a VA examination for his psychological disorder. At that time, the examiner stated that a mental condition had been formally diagnosed but the symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran also reported on the examination that his business was certified by the Better Business Bureau (BBB) and was on Angie's List. He reportedly used to work 12-to-16-hour days but has since hired a good employee that he has trained. The examiner specifically stated that the Veteran's PTSD symptoms did not cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. In August 2015, the Veteran underwent another VA examination for his psychological disorders. The examiner again found that a mental condition had been formally diagnosed, but the symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran reported at that time that he continues to own a basement waterproofing and development contracting company, but he is no longer involved in the day-to-day operations. He claims that he considered himself to be "semi-retired" and that his stepping back from work has left him too much time to think about things. He reported that he used to deal with psychological distress by burying himself in work. The examiner concluded that the Veteran's symptoms result in clinically significant psychological distress, but do not result in social or occupational impairment. In August 2019, the Veteran was examined at the Columbus VA Medical Center. Dr. E.C.D. evaluated the Veteran and found his pursuit of pleasurable activities to be unchanged but limited specifically because of his excessive work schedule. However, the Veteran reported that his psychological symptoms were causing him some occupational impairment and problems with work performance. From August 2019 up to February 2020 the Veteran was seen regularly at the Columbus VA outpatient center for his mental status. Reports from this time period note that the Veteran is alert, cooperative, and easily engaged. The notes find him to appear his stated age and do not find any psychomotor agitation or retardation. His stated mood ranged from "not bad" to "okay" with specifical denial of suicidal or homicidal ideation. Speech content was found to be linear, easy to follow and not reflecting any obvious signs of a thought disorder. In September 2016 and May 2018, the Veteran was seen by private provider Dr. R.D. who found the Veteran to still be quite active at work as a contractor. In 2019 the Veteran stated that he realized he was struggling with PTSD symptoms about four to five years ago and he only began to realize he was having symptoms due to the fact that he cut back on work and had more time on his hands. The Veteran agreed to continue the process of completing a formal updated trauma assessment but per his request, had his appointments scheduled around his work obligations. Given the foregoing, the Board finds that the Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation consistent with his education, skills, training, and work history. The Veteran has had multiple VA examinations throughout the record. In August 2012, the Veteran was examined for GERD and it was determined that his GERD did not impact his ability to work. In August 2012 the Veteran's psychological disability was also found to not impact his ability to work. The Veteran had also stated that he was elf-employed because he did not work well with others but in the August 2012 examination, he claimed that he had hired and trained a new employee. In August 2015 the Veteran was found to have clinically significant psychological distress. However, the psychological distress was not found to result in social or occupational impairment for the Veteran. While the Veteran also reported urinary frequency every half hour and having to stop travelling long distances for work, his September 2018 prostate cancer examination stated that his prostate cancer did not impact his ability to work. His private provider Dr. R.D. also noted in 2018 that the Veteran was still quite active at work. Again, in April 2019 the Veteran underwent a VA examination for his hypertension and the examiner found that it did not impact his ability to work. In April 2020 the Veteran had another prostate cancer examination and the examiner concluded that the Veteran's prostate cancer did not impact his ability to work. Additionally, throughout the record, the Veteran does not indicate that he ever is precluded from working. The only medical report that finds the Veteran to be occupationally or socially impaired is contained in his private treatment records, in which the Veteran does mention that he stepped away from the day-to-day operations of his business, but the record indicates that he still plays a role in his company, as he describes himself as "semi-retired" and mentions scheduling appointments and examinations around his work schedule. It is also noted that he is precluded from engaging in some pleasurable activities due to his excessive work schedule. Finally, as referenced above, while the record does note that the Veteran is self-employed, there is no evidence to suggest that this employment is in a protected environment or marginal. The lack of a VA Form 21-8940 makes it difficult for the Board to fully assess what the Veteran's annual income is, if he has any accommodations, how many other employees he may be working with, and other considerations for rendering a determination as to whether his employment is marginal. There is simply not enough information in the record for the Board to determine that the Veteran is unable to sustain gainful employment or is marginally employed. Accordingly, a TDIU is not warranted on this basis. The ultimate question for the Board is whether the Veteran is capable of performing physical and mental acts required by employment, not whether he can find employment. Van Hoose v, 4 Vet. App. at 363. While the Board acknowledges the Veteran's contentions, the evidence does not show that his disabilities preclude all forms of employment. Here, although the Board acknowledges that the Veteran is limited in his ability to perform some activities, there is simply no evidence in the record that supports a finding that his service-connected disabilities prevent him from securing or maintaining all gainful employment. In sum, the record does not support that the Veteran's service-connected disabilities render him unable to obtain or maintain substantially gainful employment. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim of entitlement to a TDIU is denied. 38 U.S.C. § 5107. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.