Citation Nr: 21074513 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 13-21 195 DATE: December 15, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss has been withdrawn. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to Agent Orange has been withdrawn. Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) is granted from October 31, 2019. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities is granted from October 31, 2019. FINDINGS OF FACT 1. The Veteran submitted a notice of disagreement (NOD) in January 2011, within one year of the April 2010 rating decision denying, in pertinent part, a noncompensable rating for bilateral hearing loss and granting an initial rating of 50 percent for PTSD. 2. In correspondence received in September 2021, prior to the promulgation of a decision in the appeal, the Veteran and his attorney indicated that the Veteran wished to withdraw his appeal with respect to the issue of entitlement to a compensable rating for bilateral hearing loss. 3. In correspondence received in September 2021, prior to the promulgation of a decision in the appeal, the Veteran and his attorney indicated that the Veteran wished to withdraw his appeal with respect to the issue of service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to Agent Orange. 4. For the appeal period prior to October 31, 2019 the Veteran's PTSD is not shown to result in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 5. The Veteran's PTSD was manifested by symptoms which produced occupational and social impairment with deficiencies in most areas but has not more nearly approximated total occupational and social impairment from October 31, 2019. 6. Resolving all doubt in favor of the Veteran, he has been unable to secure and maintain substantially gainful employment as a result of his service-connected disabilities from October 31, 2019. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal have been met with respect to the issue of entitlement to a compensable rating for bilateral hearing loss. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.205 (2020). 2. The criteria for withdrawal of an appeal have been met with respect to the issue of entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to Agent Orange. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.205 (2020). 3. The criteria for a 70 percent for PTSD have been met from October 31, 2019. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.130, Diagnostic Code 9411 (2014). 4. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met from October 31, 2019. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Marine Corps from February 1968 to September 1969. These matters come before the Board of Veterans' Appeals (Board) from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in April 2010 and November 2021. The Veteran submitted Notices of Disagreement (NOD) in January 2011 and in December 2011. A Statement of the Case (SOC) was issued in June 2013. The Veteran perfected an appeal by submitting a timely VA Form 9 in July 2013. The Veteran and his representative at the time appeared in an October 2016 hearing. A transcript of that hearing has been associated with the record. The issues were previously before the Board. In August 2017, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to: (1) provide the Veteran notice under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to substantiate a claim for TDIU; (2) contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his COPD, bilateral hearing loss, and PTSD; (3) schedule the Veteran for a VA examination to determine the nature and etiology of his COPD; (4) schedule a VA examination to determine the severity of his bilateral hearing loss; (5) schedule a VA examination to determine the symptoms and severity of his PTSD; and, (6) readjudicate the issues on appeal. In September 2017, the Veteran was notified of the decision and was asked for information as outlined in the August 2017 Board decision. In August 2018, the Veteran revoked the appointment of his representative at the time and elected to be represented by his current attorney. This attorney was granted access to the electronic file as early as September 2018 but has chosen not to use this privilege as he requested copies of the file and extensions until the copies were received. In September 2019, the Veteran was afforded a VA examination for his PTSD. In October 2019, he was afforded a VA examination for his bilateral hearing loss. Another review of medical evidence for the Veteran's PTSD claim was conducted in October 2019. An in-person VA examination for his claim of service connection for COPD was conducted in November 2019, and an individual unemployability statement was obtained in the same month. A supplemental statement of the case (SSOC) was issued in February 2020, readjudicating the issues on appeal. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). In July 2020, September 2020, November 2020, April 2021, and in June 2021, the Veteran's attorney asked for 90 day stays. Those 90-day periods have expired. The representative was provided a request copy of the file on compact disc in September 2020. Material submitted in September 2021 consisted of large files of VA records already in the file, private outpatient treatment records printed in November 2019 and May 2021, and a private consultant's report of an interview in June 2021 with the written report dated in July 2021. The Board finds that the timeliness of the Veteran's development of evidence is unsatisfactory and the cause for considerable delay. In September 2021, the Veteran waived initial review of submitted evidence by the AOJ. Under applicable criteria, 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. 38 C.F.R. §§ 20.202, 20.205. Withdrawal may be made by a veteran or by his or her authorized representative. 38 C.F.R. § 20.205. In September 2021, the Veteran and his attorney indicated that he wanted to withdraw the appeals for the claims of service connection for COPD and entitlement to a compensable rating for bilateral hearing loss. The Board finds that the withdrawal is explicit and unambiguous, and, as it was submitted with the assistance of his attorney, done with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). In October 2021, the Veteran was notified that the Veterans Law Judge who conducted the October 2016 hearing had retired, and he had the right to another Board hearing. The Veteran was notified that if he did not respond within 30 days from the date of the notice letter that the Board would assume that the Veteran did not want another hearing. The 30-day period has passed without the Veteran indicating that he wanted an additional hearing. Lastly, the Board notes that in November 2018, it remanded the claim of service connection for essential tremors, to include as due to herbicide exposure and/or as secondary to service-connected posttraumatic stress disorder. Although a VA medical opinion was obtained in September 2019 opining that the Veteran's essential tremors were secondary to his service-connected PTSD, the AOJ did not yet adjudicate the issue. The Board refers this matter to the AOJ for appropriate action. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. 1. Entitlement to a rating greater than 50 percent for posttraumatic stress disorder (PTSD) The Veteran contends that he is entitled to a rating greater than 50 percent for his PTSD as he never denied having flashbacks from Vietnam, that he has been in "intense therapy" for his depression, sleep impairment, mood changes, and flashbacks. The Veteran also contends that he is incapable of taking care of his financial affairs and that his grooming depended on his girlfriend. The Veteran is currently in receipt of a 50 percent rating for his PTSD effective August 13, 2009. The Veteran's PTSD has been rated under the criteria contained in the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411, Posttraumatic Stress Disorder. Under the General Rating Formula for Mental Disorders, 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. See Id. A 70 percent rating is assigned when there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or worklike setting); inability to establish and maintain effective relationships. See Id. A 100 percent rating is warranted when there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger or hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. See Id. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must 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. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Court) held 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." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 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." Id. at 118. The Federal Circuit indicated that "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In April 2009, the Veteran reported working for 31 years at the same company, performing "many roles," from engine testing to union education. The Veteran denied having any problems or altercations while employed but reported that he was "much more comfortable working alone" in the last five years he was employed. He stated that he retired in January 2007. The Veteran also reported "having difficulty with many experiences in Vietnam" and that he had two prior divorces and one pending divorce. He also received treatment immediately following his discharge from Vietnam for psychiatric issues but denied hospitalizations. The Veteran was properly groomed with appropriate self-care skills and denied history of hallucinations, delusions, suicidal or homicidal ideations or intentions. The Veteran was diagnosed as having PTSD, major depressive disorder, and polysubstance dependence in sustained full remission. In April 2010, the Veteran reported having sleep problems for 4 to 5 years with military related nightmares 3 to 5 times a week. He also reported having depression for 3 to 4 years but denied having depression prior to this and that his depression and nightmares worsened ever since he retired. The Veteran stated that he lived with his girlfriend in her house. The examiner observed that the Veteran was casually dressed and groomed with depressed mood. The Veteran did not report any suicidal or homicidal ideations. In August 2011, the Veteran reported that he retired because he was "offered a good deal to retire." He stated that he has been married to his wife for the past 21 years, but they have been legally separated for the past 3 or 4 years and that he has not had any contact with his wife for about 3 years. He added that he had a great relationship with his sister but only socializes with his dogs and that lived with his current girlfriend. On activities, the Veteran stated that he checks his email and bank accounts daily and goes out to dinner with his girlfriend. The examiner observed symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The Veteran reported moderate to severe nightmares, daily intrusive recollections, and essential tremor. He also stated that he avoided small rooms and crowded areas and marked diminished interest in significant activities although he does have some activities he enjoys. In December 2011, the Veteran stated that he had been in "intense therapy for [his] depression, sleep impairment, mood changes and serious flashbacks from Vietnam." He continued that he never denied having serious flashbacks and that he was incapable of taking care of his financial affairs and managing his bills on his own. The Veteran's girlfriend also took care of his appearance and that his relationship with her was made difficult by his symptoms. In July 2014, the Veteran denied feeling depressed or anxious, but that his sleep was about the same. He also denied feeling hopeless or worthless, as well as suicidal or homicidal ideations. He was appropriately dressed, groomed, and showed a pleasant and cooperative attitude. In May 2017, the Veteran reported feeling well and that his life was pretty good other than having to pay for alimony. Despite having more nightmares than before, he stated that he could live with them and was tired of taking medication. The Veteran lived by himself in his own travel trailer with his service dog. He was not in a relationship but reported having a platonic female friend. The Veteran appeared appropriately dressed and groomed but was on portable oxygen. He denied suicidal or homicidal ideations. Private medical treatment records from August, September, October, November, and December 2017 show that the Veteran denying suicidal ideations, reporting that he was able to maintain relationships, and stating that the symptoms did not interfere with activities of daily living. Private medical treatment records from February, March, May, July, August, September, October, November and December 2018 show that the Veteran denying suicidal or homicidal ideations, reporting that he was able to maintain relationships, and stating that the symptoms did not interfere with activities of daily living. The records also note that the onset of recurrent major depression was on May 31, 2018 and that the onset of generalized anxiety disorder was on January 30, 2017. In May 2018, private treatment records show that the Veteran showed normal mood and affect with normal recent and remote memory. In August 2018, the Veteran did not report any sleep disturbances. He stated that he never feels sad, empty, or tearful and that he had no loss of interest in activities. The Veteran also denied sleep disturbances or insomnia and that he had no feelings of worthlessness or guilt. From January to May 2019, the Veteran denied suicidal or homicidal ideations and that he was able to maintain relationships. He also reported that his symptoms did not interfere with activities of daily living, that he was sleeping well with good appetite. He did report depression, sleep disturbances, restless sleep, and anxiety but feeling safe in a relationship in November 2018, February 2019, and April 2019 but also reported "sleeping well," seemingly contradicting his statement of sleep disturbances and restless sleep. The private practitioner did observe that the Veteran was anxious and depressed but that he was oriented, and that his recent and remote memory was normal. In September 2019, the Veteran was afforded a VA examination where the examiner noted that there was no new information since the last examination in August 2011. The Veteran did report that he continued to receive counseling and medical treatment for his symptoms. The examiner observed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The Veteran arrived on time for the evaluation, was groomed and appropriately dressed. He reported being diagnosed as having essential tremors "about three years ago" with worsening symptoms that affect his mental health symptoms and interfered with daily activities. On October 31, 2019, an additional medical opinion was added to the Veteran's file. In pertinent part, the examiner observed symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. In the remarks, however, the examiner noted that the Veteran denied any "current" suicidal ideation, intent, or plan, but that the Veteran reported thinking "about suicidal stuff... not going to do it but I think about it." Private treatment records from July, August, September, and October 2020 show that the Veteran denied suicidal or homicidal ideations, reported being able to maintain relationships, and that his symptoms did not interfere with activities of daily living. He also reported sleeping well with good energy. In January, February, March and April 2021, the Veteran again denied suicidal and homicidal ideations, reported that he was able to maintain relationships, and stated that his symptoms did not interfere with activities of daily living. The Veteran also reported sleeping well with good appetite and energy. In July 2021, a private consulting medical practitioner noted a review of the history and performed a mental status interview. As the consultant's address is in a state distant from the Veteran's residence, the interview was likely by electronic means and not in person. The consultant wrote that the Veteran "was forced to remove himself from the workforce in 2007 due to the severity of his mental illness marked by severely impaired interpersonal interactions and an overwhelming escalation in his PTSD symptomatology." The private medical practitioner does not cite any contemporaneous records or explains the source of the nature of the Veteran's retirement but noted that he interviewed the Veteran in June 2021. After this interview and reviewing selected medical evidence of record, the private medical practitioner opined that the Veteran has had significant limitations since 2007 and "show the antithesis of an individual who could be employed in a meaningful and gainful employment setting." The Veteran also stated to the private medical consultant that he struggled with PTSD throughout his 31 years of employment and that he retired because "his level of potential violence and poor interpersonal interactions forced him to remove himself from the workforce." Although this statement seems to contradict his statement made two years after retirement when he denied any problems or altercations while employed and that he was "much more comfortable" and was "working alone" the last five years he was employed, the private medical practitioner did not discuss why he valued this statement over the statement made by the Veteran closer to the time of retirement. Regarding suicidal ideation, the private consultant noted that the Veteran's thought content was "positive for suicidal ideation without plan or intent." The Board assigns little probative weight to the July 2021 private medical opinion as a whole since the private practitioner did not discuss any of the medical records contrary to his opinion. A large part of the report was a recitation of the etiology of the disorder and not current manifestations. In addition to the statements above, the private practitioner also ignored extensive private treatment records where the Veteran consistently reported that he was able to maintain relationships, that his symptoms did not interfere with activities of daily living, and that he slept well. Put another way, the July 2021 medical opinion is based on incomplete factual basis, and as the missing facts paint a disability picture contrary to that described by the private medical practitioner and not consistent with the VA or private outpatient treatment records, the Board finds that the medical opinion is not supported by adequate rationale. The opinion, however, has probative weight when limited to the time period proximate to the interview in June 2021 as they are reflective of the Veteran's symptoms around the time of the interview. Prior to October 31, 2019 After reviewing the evidence of record, the Board finds prior to October 31, 2019, the Veteran's disability picture is best approximated by the criteria for a 50 percent evaluation. When adjudicating psychiatric claims, the Board has an obligation under Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) to conduct a three-part "holistic" analysis. The first step of the analysis is to assess the "severity, frequency, and duration of the signs and symptoms" of the Veteran's condition. The second step is to quantify "the level of occupational and social impairment caused by those signs and symptoms." The third step is to assign an "evaluation that most closely approximates that level of occupational and social impairment." See also Mauerhan, 16 Vet. App. at 436 (holding that the list of symptoms in the disability rating schedule for psychiatric disabilities is not exhaustive); and see Vazquez-Claudio, 713 F.3d at 112 (holding that the disability rating schedule for psychiatric disabilities reflects "objectively-observable symptomatology," and "it is the severity of the effects of the symptoms as described by the examiner that determines the rating"). There is no evidence of record prior to October 31, 2019, lay or medical, showing symptoms of: 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships. To put another way, there is no evidence of the Veteran's symptoms resulting in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Although the Veteran reported that he was unable to maintain his finances in December 2011, he stated in April 2011 that he checked his bank account daily and did not report any problems with finances nor showed problems with grooming or hygiene in May 2017 when he was living by himself and was not in a romantic relationship. As discussed in detail above, the Veteran's medical treatment records are often inconsistent and contradictory, and the Board assigned greater probative weight to statements made contemporaneously over statements made years or decades after the event being reported. Specifically, the Board assigns greater probative weight to statements made in April 2009 describing the nature of his work and retirement in January 2007 compared to statements made in July 2021. Similarly, although the Veteran reported difficulty with relationships, he also reported that he maintained a good relationship with his sister, communicated with his brothers, son, grandchildren, and had a girlfriend during the period on appeal showing that he did not have an inability to establish and maintain effective relationships. Therefore, in view of the evidence of record, the Veteran does not exhibit objective symptomatology that would be sufficient to warrant a rating in excess of 50 percent prior to October 31, 2019. Of note, although the Veteran may exhibit some symptoms of a higher rating, a holistic review of the Veteran's medical record demonstrate that his symptoms are better categorized by the 50 percent rating. See Vazquez-Claudio, 713 F.3d at 115-17. Moreover, some of the symptoms listed in the diagnostic code for a higher rating have not been shown at all. In summary, the most probative evidence reflects that the criteria for a rating in excess of 50 percent for PTSD have not been met prior to October 31, 2019. See 38 C.F.R. § 4.130, DC 9411. From October 31, 2019 As discussed above, on October 31, 2019, the Veteran admitted to having passive thoughts of suicide that was repeated again in July 2021. Although the Veteran consistently denied such ideations in many other settings, explicitly denied that the thoughts interfered with daily activities, and although there is little other evidence that these thoughts had any effect on social and occupational impairment, resolving doubt in favor of the Veteran, the evidence warrants a schedular rating of 70 percent for the Veteran's service-connected PTSD from October 31, 2019. However, the preponderance of the evidence is against assignment of a rating in excess of 70 percent. The Veteran has not exhibited a majority of the symptoms provided for a 70 percent rating. However, since October 31, 2019, he has reported suicidal ideations or passive thoughts of death. In Bankhead, 29 Vet. App. at 22, the Court held that the language of the general rating formula "indicates that the presence of suicidal ideation alone ... may cause occupational and social impairment with deficiencies in most areas." The Court also held that "insofar as the Board required evidence of more than thought or thoughts to establish the symptom of suicidal ideation, it erred." Id. Based on the Court's holding reasoning in Bankhead, and resolving doubt in favor of the Veteran, his anxiety disorder and major depressive disorder is more nearly approximated by the criteria for a 70 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. However, his symptoms have not more nearly approximated total occupational and social impairment at any point during the appeal period. Symptoms such as gross impairment in thought processes or communication; persistent danger of hurting self or others; disorientation to time and place; memory loss for names of close relatives, own occupation or name, have not been shown. As discussed above, the Veteran appeared in numerous appointments from October 31, 2019, and outside of his admission of suicide or passive thought of death, he has otherwise not displayed most of the symptoms described in the criteria for a 70 percent rating, much less symptoms described in the criteria for a 100 percent rating. Id. The ultimate determination, however, of the degree of occupational impairment is a legal rather than a medical determination. 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination ... so that the current rating may accurately reflect the elements of disability present"). As set forth below, it is determined that the Veteran's PTSD has not produced total occupational impairment. In so finding, it is noted that the evidence of record show the Veteran has not displayed most of the symptoms as discussed above, while also maintaining relationships and appearing to the examinations by himself. Thus, neither the symptoms nor overall level of impairment meet the criteria for a 100 percent schedular rating under the Rating Schedule, and a rating greater than 70 percent assigned herein is therefore not warranted for the Veteran's PTSD. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities The Veteran contends that his service-connected disabilities render him unable to obtain and maintain gainful employment. VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). Regardless, 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. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: 1) the veteran's history, education, skill, and training; 2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, considering factors that may be relevant that include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and 3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, with factors that may be relevant that include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran was in receipt of a 60 percent rating effective August 13, 2009. Specifically, he was in receipt of a 50 percent rating for PTSD, a 10 percent rating for tinnitus, and a 0 percent rating for bilateral hearing loss. In light of the grant of a 70 percent rating for PTSD effective October 31, 2019, the Board notes that the Veteran is now in receipt of a combined 70 percent rating from October 31, 2019. Thus, the Veteran does not satisfy the threshold rating percentage requirements set forth in 38 C.F.R. § 4.16(a) for a TDIU prior to October 31, 2019. Although the Veteran does not meet the schedular criteria for TDIU for the entire period on appeal, as discussed above, in any case where the Veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). In the case at hand, however, referral for extra-schedular consideration is not warranted because, upon weighing the evidence, the most probative evidence of record establishes that the Veteran's service-connected disabilities do not preclude substantially gainful employment prior to October 31, 2019. The Board adds that this determination is made including the symptoms of essential tremors although the issue has not yet been adjudicated by the AOJ. Reviewing the evidence of record, the Board finds that the tremors are controlled with medication although the Veteran reported worsening in September 2019. As with many of his other symptoms, the Veteran's private treatment records are contrary to VA Medical Center treatment records as he has shown or reported "no tremor" in his private treatment records. As discussed at length above, the Veteran retired on his own terms after 31 years of work at a single company while performing jobs ranging from engine testing to union education. In April 2009, just two years after retirement, the Veteran reported that he had no problems at work and that the five years preceding his retirement was comfortable as he could work alone. In summary, the statements closest to the time at work and retirement show that the Veteran's PTSD, despite its high rating, did not prevent the Veteran from obtaining and maintaining gainful employment. The Board also notes that the Veteran received psychiatric treatment shortly after discharge, evidence that further supports that the Veteran could work and perform changing duties for 31 years despite being diagnosed as having a psychiatric disorder. More importantly, the medical evidence of record prior to October 31, 2019 do not show worsening symptomatology after retirement to the extent that the Veteran could no longer obtain and maintain gainful employment. Although the Veteran complained of flashbacks, nightmares, and resulting chronic sleep impairment that started prior to his retirement and stated that the symptoms worsened after retirement, private treatment records show that the Veteran's medication, when the Veteran took them, were effective in controlling his symptoms. The Board also notes, as discussed above, that the Veteran often made contradictory statements regarding the severity of his symptoms but consistently appeared to be well groomed, appropriately dressed, oriented and otherwise able to establish and maintain effective work and social relationships. There is also no evidence of record suggesting that the Veteran's symptoms interfered specifically with his job-related skills, ranging from engine testing to union education. Even if his symptoms worsened after retirement, there is no evidence of record that his symptoms were not approximated by his combined 60 percent rating. Again, a high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. In summary, prior to October 31, 2019, the medical evidence of record does not show that the Veteran's mental and/or physical ability to perform activities required by his prior occupation was affected by his service-connected disabilities in such a way that would preclude him from obtaining and maintaining employment. From October 31, 2019, resolving doubt in favor of the Veteran, the Board finds that the Veteran's service-connected disabilities do preclude him from obtaining and maintaining gainful employment. In addition to meeting the schedular criteria for TDIU, a VA examiner opined on October 31, 2019 that the Veteran: had difficulty attending to or is easily distracted from the task at hand; had difficulty maintaining concentration and focus on work over a period of time, tends to skip from one task to another without completing the prior task; has intrusive thoughts which interfere with the ability to stay focused on the task at hand; has significant difficulty accepting supervision or receiving instructions without becoming angry; has significant difficulty functioning around other people, has difficulty functioning as a team member, and feels uncomfortable around others; cannot tolerate being around other people in any setting for more than a few minutes; and that his sleep is so disrupted that he is usually fatigued at work, making concentration and focus on work assignments difficult. Again, although the above findings from October 31, 2019 are inconsistent with, or contrary to, most of the reports he made to his private medical provider in the same time period and after, the Board finds that the evidence during this period is in equipoise as the Veteran also reported suicidal ideation and presented himself in such a manner to the July 2021 private medical practitioner that he found the Veteran unemployable. Although the Board assigned no probative weight to the July 2021 private medical opinion due to it ignoring contrary statements for the period prior to October 31, 2019, the incompleteness is less damaging when limiting the scope of the opinion from October 31, 2019 and beyond as the opinion was based on statements made by the Veteran in June 2021. Thus, the July 2021 private medical opinion suggests that the Veteran's symptoms in June 2021 worsened to such a degree that the private medical practitioner found the Veteran unemployable. For the foregoing reasons, the evidence is at least in equipoise that the criteria for a total disability evaluation based upon individual unemployability due to service-connected disabilities were met, and resolving doubt in favor of the Veteran, the Veteran's claim for TDIU is granted from October 31, 2019. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.S. Yun, 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.