Citation Nr: 21075813 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 20-13 665 DATE: December 21, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) to include alcohol use disorder in remission and anxiety is denied. Entitlement to a rating in excess of 40 percent for fibromyalgia with diffuse chronic musculoskeletal pain, insertional pain syndrome is denied. Entitlement to a rating in excess of 30 percent for irritable bowel syndrome (IBS) associated with PTSD is denied. New and material evidence not having been received, the request to reopen the claim for entitlement to service connection for migraine headaches is denied. Entitlement to an earlier effective date for the grant of a 70 percent rating for PTSD is denied. Entitlement to an earlier effective date for the grant of a 40 percent rating for fibromyalgia with diffuse chronic musculoskeletal pain, insertional pain syndrome is denied. Entitlement to an effective date earlier than September 23, 2018 for the grant of a total disability rating based on individual unemployability (TDIU) is denied. Entitlement to restoration of TDIU benefits effective December 1, 2020 is granted. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran's PTSD to include alcohol use disorder in remission and anxiety has been manifested by symptoms including depressed mood, anxiety, suspiciousness, a chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining relationships, difficulty in adapting to stressful circumstances, disturbances in motivation and mood, and suicidal ideation; his symptoms do not most nearly approximate total occupational and social impairment. 2. Throughout the appellate period, the Veteran's fibromyalgia with diffuse chronic musculoskeletal pain, insertional pain syndrome has manifested by symptoms of widespread musculoskeletal pain and tender points with stiffness, muscle weakness, fatigue, sleep disturbances, headache, anxiety, and irritable bowel symptoms that are constant or nearly constant and refractory to therapy; these symptoms are consistent with a 40 percent rating. 3. Throughout the appellate period, the Veteran's IBS manifested by symptoms of alternating diarrhea and constipation, with frequent abdominal distress; these symptoms are most consistent with a 30 percent rating. 4. A June 2014 rating decision denied service connection for migraine headaches. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 5. Evidence received since the June 2014 rating decision has been cumulative and redundant and does not raise a reasonable possibility of substantiating the claim. 6. The Veteran's 70 percent rating for PTSD was granted effective the date he requested an increase, January 16, 2018, the earliest possible effective date. 7. The Veteran's 40 percent rating for fibromyalgia with diffuse chronic musculoskeletal pain, insertional pain syndrome was granted April 20, 2016, the date of his intent to file, the earliest possible effective date. 8. The Veteran was still working on January 16, 2018. 9. The Veteran worked for 12 consecutive months but is now unemployed; actual employability is not established by clear and convincing evidence. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD to include alcohol use disorder in remission and anxiety have not been met. 38 U.S.C. §§ 1110, 1155; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a rating in excess of 40 percent for fibromyalgia with diffuse chronic musculoskeletal pain, insertional pain syndrome have not been met. 38 U.S.C. §§ 1110, 1155; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.71a, DC 5025. 3. The criteria for a rating in excess of 30 percent for IBS have not been met. 38 U.S.C. §§ 1110, 1155; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.114, DC 7319. 4. The June 2014 rating decision is final. 38 U.S.C. §§ 7105, 7257; 38 C.F.R. §§ 3.104, 20.1103. 5. New and material evidence sufficient to reopen the claim for entitlement to service connection for migraine headaches has not been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. The criteria for an earlier effective date for the grant of a 70 percent rating for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105(a)(1), 3.400. 7. The criteria for an earlier effective date for the grant of a 40 percent rating for fibromyalgia with diffuse chronic musculoskeletal pain, insertional pain syndrome have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105(a)(1), 3.400. 8. The criteria for an effective date earlier than September 23, 2018 for the grant of a TDIU have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105(a)(1), 3.400. 9. The criteria for restoration of TDIU benefits effective December 1, 2020 have been met. 38 C.F.R. §§ 3.105(e), 3.343(c)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2001 to May 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from July 2018, January 2019, and November 2020 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2021. A transcript of the hearing is associated with the electronic claims file. The record was held open for an additional 60 days pursuant to the Veteran's representative's request, but the representative did not submit any additional argument. I. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that 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 will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to a rating in excess of 70 percent for PTSD to include alcohol use disorder in remission and anxiety. On January 16, 2018, the Veteran filed an application requesting an increased rating for his PTSD. Following a VA examination, the RO issued a July 2018 rating decision increasing the Veteran's PTSD evaluation to 70 percent, effective January 16, 2018, the date of his claim. The Veteran appealed this rating up to the Board, arguing that his symptoms are so severe as to warrant a 100 percent rating. PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula For Mental Disorders, to include PTSD, a 70 percent evaluation is warranted where there is 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; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is assignable where there is 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 minimal personal hygiene); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. An evaluation shall be assigned based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126. Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. Id. It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, 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, 443 (2002). Thus, the Board will consider whether "the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code," and, if so, the "equivalent rating will be assigned." Id. The Federal Circuit held previously that a Veteran may only qualify for a given disability rating "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) ("Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the 'frequency, severity, and duration' of a Veteran's symptoms must play an important role in determining his disability level."). The Veteran was given a June 2018 VA examination for his PTSD. Here, the examiner found the Veteran to have occupational and social impairment with reduced reliability and productivity. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. With regard to behavioral observations the examiner noted that the Veteran was casually dressed with adequate grooming and hygiene, oriented in all spheres, attentive throughout the interview and maintained good eye contact. His mood appeared to be dysthymic with restricted range of affect and his speech was in normal limits with clear and coherent thought processes. He denied current suicidal or homicidal ideation, plans, or intent. The examiner opined that the Veteran was capable of managing his own financial affairs. The Board finds these symptoms to be most consistent with a 70 percent rating for PTSD. The Veteran was given another VA examination for his PTSD in October 2018. Here, the examiner found that the Veteran was suffering from occupational and social impairment with deficiencies in most areas. The examiner noted that the Veteran denied any audio/visual hallucinations, but had symptoms including depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. With regard to behavioral observations the examiner noted that the Veteran was casually dressed with adequate grooming and hygiene, oriented in all spheres, was attentive throughout the interview and maintained good eye contact. His mood appeared to be dysthymic with restricted range of affect and his speech was in normal limits with clear and coherent thought processes. He denied current suicidal or homicidal ideation, plans, or intent. The examiner opined that the Veteran was capable of managing his own financial affairs. Finally, the examiner noted that the Veteran indicated that he believes he could be successful in a work environment outside the prison system. The Board also finds these symptoms to be most consistent with a 70 percent rating. The Veteran was given another VA examination for his PTSD in January 2021. Here, the examiner again found the Veteran to have occupational and social impairment with deficiencies in most areas. The Veteran reported living with his wife of 17 years and noted a good relationship with her as well as his three children. The examiner listed the Veteran's symptoms as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. With regard to behavioral observations the examiner noted that the Veteran was alert and oriented, verbal, cooperative, and had no evidence of psychotic symptoms, major depression, bipolar disorder, or OCD. The Veteran denied suicidal ideation, his affect was full range, and he appeared of at least average intelligence, with good insight and judgement. The examiner opined that the Veteran was capable of managing his own financial affairs. The Board again finds these symptoms to most nearly approximate a 70 percent rating. At no time during the appellate period has the Veteran shown total occupational and social impairment as required for a 100 percent rating. The evidence shows that the Veteran suffers from symptoms that have caused problems in social and occupational functioning, but not a total impairment. Moreover, he has not at any time been shown to have severe cognitive impairment, such as gross impairment in thought processes or communication. During all VA examinations for the period on appeal, the Veteran has been fully oriented and has not had any hallucinations or delusions. He has not shown any severe memory loss, such as memory loss for names of close relatives, his own occupation, or his own name. He has not engaged in any grossly inappropriate behavior. While the Veteran's representative has argued that the Veteran is entitled to a 100 percent rating on the basis of suicidal ideation, the Board notes that the current 70 percent rating contemplates suicidal ideation. The Board is not persuaded that the frequency, duration, and severity of such suicidal ideation is such that the Veteran is in persistent danger of hurting himself where multiple VA examination report show the Veteran denied current suicidal ideation, plans, or intent. A review of the record shows that the Veteran was employed for at least part of each year from 2018 to 2020, and a request for employment information completed by his prior employer indicates that he only left his job in October 2020 because he "received full VA benefits." This indicates that the Veteran did not suffer from a total occupational impairment during that time. The Board is cognizant of the fact that the Veteran has now reported that he is separated from his wife, however, the Veteran also reported attending his daughter's sporting events, and having a good relationship with his three children. This indicates that he does not suffer from a total social impairment. The preponderance of the evidence is against a finding of total occupational and social impairment. Accordingly, entitlement to a rating in excess of 70 percent for PTSD to include alcohol use disorder in remission and anxiety is denied. 2. Entitlement to a rating in excess of 40 percent for fibromyalgia with diffuse chronic musculoskeletal pain, insertional pain syndrome. The Veteran filed an application for an increased rating of his fibromyalgia in January 2018. Following a VA examination, the RO issued a January 2019 rating decision denying the request for an increase. The Veteran appealed this issue up to the Board. The Veteran's fibromyalgia with diffuse chronic musculoskeletal pain, insertional pain syndrome is rated under DC 5025. Pursuant to DC 5025, a 40 percent evaluation is warranted for widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms, that are constant, or nearly so, and refractory to therapy. This is the highest schedular rating. The Board notes that the Veteran was first granted service connection for fibromyalgia effective April 20, 2016, evaluated at 40 percent. Following his application for an increased rating, he was given a VA examination in October 2018. Here, the examiner noted widespread musculoskeletal pain, stiffness, and muscle weakness as well as tender points and constant or nearly constant symptoms. However, the examiner found that the Veteran did not require continuous medication to control his symptoms, noted that he was not currently undergoing treatment, and opined that the Veteran's symptoms were not refractory to therapy, as required for a 40 percent rating under DC 5025. The Veteran was given another VA examination for his fibromyalgia in June 2019. Here, the examiner again found that the Veteran did not require continuous medication, was not undergoing treatment, and his symptoms were not refractory to therapy. However, widespread musculoskeletal pain, stiffness, muscle weakness, fatigue, and headache that was constant or nearly constant was found, as well as tender points. The Veteran was given another VA examination for his fibromyalgia in September 2019. This examiner found that the Veteran's symptoms were refractory to therapy noting that he has been on different medications for such. Widespread musculoskeletal pain, stiffness, muscle weakness, fatigue, sleep disturbances, headache, anxiety, and irritable bowel symptoms were all noted as constant or nearly constant. Moreover, several tender points were found. The Board notes that these examination findings support a 40 percent rating under DC 5025. Finally, the Veteran was given another VA examination for his fibromyalgia in February 2021. The examiner noted that the Veteran's condition requires continuous medication and that the Veteran is currently undergoing treatment, but that his symptoms are not refractory to therapy. Widespread muscle pain, stiffness, fatigue, sleep disturbances, headache, depression, and irritable bowel symptoms were found to be constant or nearly constant. Several tender points were also found. The Board notes that three out of the four VA examiners found the Veteran's symptoms to not be refractory to therapy as required for a 40 percent rating under DC 5025. Nevertheless, at least one examiner indicated such, to support the Veteran's current rating. None of the examiners listed any additional symptoms or problems so unordinary as to require extraschedular consideration. The Board notes that neither the Veteran, nor his representative has argued that his fibromyalgia symptoms are so extraordinary as to require extraschedular consideration. Accordingly, entitlement to a rating in excess of 40 percent for fibromyalgia with diffuse chronic musculoskeletal pain, insertional pain syndrome is denied. 3. Entitlement to a rating in excess of 30 percent for IBS. On January 16, 2018, the Veteran requested an increased rating for his IBS. Following an examination, the RO issued a July 2018 rating decision denying the claim. The Veteran subsequently appealed the rating up to the Board. The Veteran's IBS is rated under DC 7319 for irritable colon syndrome. Pursuant to DC 7319 a 30 percent rating is warranted for severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. This is the highest schedular rating. The Veteran was given a VA examination for his IBS in June 2018. Here, the examiner found alternating diarrhea and constipation as well as nausea. Frequent episodes of bowel disturbance with abdominal distress were noted, but more or less constant abdominal distress, as required for a 30 percent rating was not found. The Veteran was given another VA examination for his IBS in February 2021. Here, the examiner found alternating diarrhea and constipation, abdominal distension, and nausea. The examiner again noted that the Veteran's episodes of bowel disturbance with abdominal distress were only frequent, rather than more or less constant. The Board notes that neither examiner found the Veteran's abdominal distress to be more or less constant, as required for a 30 percent rating. Therefore, the Board does not find the evidence to be persuasive for a rating in excess of 30 percent. Moreover, neither of the examiners listed any additional symptoms or problems so unordinary as to require extraschedular consideration. The Board notes that neither the Veteran, nor his representative has argued that his IBS symptoms are so extraordinary as to require extraschedular consideration. Accordingly, entitlement to a rating in excess of 30 percent for IBS is denied. II. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 11718. 4. New and material evidence to reopen the claim for entitlement to service connection for migraine headaches has not been received. In January 2014, the Veteran initially filed an application for service connection for headaches, claiming them to be secondary to his bilateral hearing loss. The Board notes that at the time the Veteran was not service connected for bilateral hearing loss, and still is not. The RO issued a June 2014 rating decision denying service connection for headaches finding that the evidence did not support a current diagnosis of such, nor did his service treatment records show complaints, treatment, or diagnosis of headaches. The Veteran did not appeal this rating decision; thus, it became final. Since that rating decision, the Veteran has filed multiple new applications requesting service connection for migraine headaches and providing multiple theories of entitlement. In conjunction with his claims the Veteran was given VA examinations for his headaches, two separate examinations in July 2017 and one in January 2018. At each of these examinations it was determined that the Veteran did not meet the criteria for a separate diagnosis of migraine or tension headaches, rather his headaches were a symptom of his already service-connected fibromyalgia. The Board notes that the Veteran was assessed with possible fibromyalgia in October 2016 and formally diagnosed in April 2017. A review of the Veteran's VA treatment records show that he consistently denied headaches, but then in April 2017 he reported headaches with stiffness and worse frontal headaches since the onset of his myalgia. Moreover, the Veteran provided a headache log from April-May 2017 that also corresponded with his fibromyalgia diagnosis. Neither the Veteran, nor his representative has provided any evidence of a separately diagnosed headache condition. Instead, the evidence is cumulative and redundant of the finding that he does not have a current diagnosis of migraine headaches. As no new and material evidence that raises a reasonable possibility for substantiating the claim has been submitted, the request to reopen the claim for entitlement to service connection for migraine headaches is denied. III. Earlier Effective Date Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. With respect to claims of entitlement to service connection, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. See 38 C.F.R. § 3.400(b)(2). 5. Entitlement to an earlier effective date for the grant of a 70 percent rating for PTSD. On his August 2019 notice of disagreement, the Veteran indicated that he disagreed with the effective date of the award of his 70 percent evaluation for PTSD. However, as noted above, the Veteran requested an increased rating of his PTSD in an application dated January 16, 2018. The effective date for a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. As the Veteran requested an increased rating on January 16, 2018 and was awarded an increased rating effective that date, entitlement to an earlier effective date is not warranted. The Board notes that neither the Veteran, nor his representative provided any argument in support of this claim. While at the hearing the Veteran's representative requested the record remain open for 60 days to submit a brief with regard to the effective date claims, no such brief was ever received. Accordingly, entitlement to an earlier effective date for the grant of a 70 percent rating for PTSD is denied. 6. Entitlement to an earlier effective date for the grant of a 40 percent rating for fibromyalgia with diffuse chronic musculoskeletal pain, insertional pain syndrome. On April 20, 2016, VA sent the Veteran a letter indicating that it had received his intent to file a claim on that same day and that a completed application received within a year of that date may be compensable back to the date of the intent to file. On October 13, 2016, the Veteran filed an application for service connection for an unexplained multi-symptom illness, and on the following day also filed an application for service connection for fibromyalgia. He was given a VA examination for such and subsequently the RO issued an April 2017 rating decision granting service connection for fibromyalgia with diffuse musculoskeletal pain, insertional pain syndrome with an evaluation of 40 percent, effective April 20, 2016, the date of his intent to file. Following this rating decision, the Veteran submitted a letter arguing that he should be compensated back to 2005 for this claim, as he first submitted an application for service connection for a bilateral knee, ankle, and hand condition in May 2005. However, he did not file a proper notice of disagreement regarding the effective date. Thus, this contention is not properly before the Board. Nevertheless, a review of the Veteran's electronic file shows that he did file an application for service connection for bilateral knee, ankle, and hand conditions in March 2005, but in an April 2005 report of contact he requested that these claims be withdrawn as he was unable to attend any of the available VA examination dates. A notification letter memorializing his request to withdraw the claims was sent to the Veteran on April 18, 2005 and he did not further pursue the claim. Turning to the effective date claim properly before the Board, on his August 2019 notice of disagreement, the Veteran indicated that he disagreed with the effective date of the award of his 40 percent evaluation for fibromyalgia. The effective date of an evaluation and award of compensation based on an original claim, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Board has already noted that the Veteran was initially granted a 40 percent rating for his fibromyalgia beginning April 20, 2016, the date of his intent to file a claim. There can be no freestanding claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that VA claimants may not properly file, and VA has no authority to adjudicate, a free-standing earlier effective date claim in an attempt to overcome a final decision). Moreover, the Board notes that neither the Veteran, nor his representative provided any argument in support of this claim. Accordingly, entitlement to an earlier effective date for the grant of a 40 percent rating for fibromyalgia with diffuse musculoskeletal pain, insertional pain syndrome is denied. 7. Entitlement to an effective date of January 16, 2018 for the grant of a TDIU. The Veteran first filed an application for a TDIU on September 23, 2018. On his application he indicated that his last date of employment was September 17, 2018. The claim was initially denied in a January 2019 rating decision, to which the Veteran filed a notice of disagreement. The RO subsequently granted the claim in a March 2020 rating decision, effective September 23, 2018, the date of his initial application. On his Form 9 appeal to the Board, the Veteran, through his representative argued that his TDIU should be granted back to the date of his request for an increased rating for his PTSD, or January 16, 2018. The Board is not persuaded by this argument. On his initial application for a TDIU, the Veteran listed his previous dates of employment to be March 27, 2011 to September 17, 2018. He listed the date in which he became too disabled to work as September 17, 2018. The Board again notes that this application was filed on September 23, 2018 and the Veteran was granted benefits as of the date of his application. Moreover, the Board notes that a TDIU is reserved for Veterans who are found to be unable to secure or follow substantially gainful employment as a result of their service-connected disabilities. The Veteran clearly did not meet this definition beginning on January 16, 2018, because he was still employed at the time. Accordingly, entitlement to an earlier effective date for the grant of a TDIU is denied. IV. TDIU Benefits VA regulation provides that a rating of 100 percent disability based on individual unemployability may be reduced, subject to the procedural protections of § 3.105(e), but caution must be exercised in such a determination that "actual employability is established by clear and convincing evidence." 38 C.F.R. § 3.343(c)(1). A finding of "actual employability" must encompass a finding that the Veteran is no longer unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16(a). Further, "[i]f a Veteran with a TDIU begins to engage in a substantially gainful occupation after January 1, 1985, the veteran's rating may not be reduced solely based on such occupation unless the veteran maintains the occupation for a period of twelve consecutive months." 38 C.F.R. § 3.343(c)(2). The "clear and convincing" standard requires that capacity for work be proven to a "reasonable certainty" but not necessarily be "undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999). The clear and convincing standard of proof is an intermediate standard between preponderance of the evidence and beyond a reasonable doubt. Fagan West, 13 Vet. App. 48, 55 (1999); Olson v. Brown, 5 Vet. App. 430, 434 (1993). 8. Entitlement to restoration of TDIU benefits. In a November 2020 rating decision, the RO discontinued the Veteran's TDIU benefits. As noted above, the Veteran was granted a TDIU effective September 23, 2018. On his initial application of that date, he listed the date he became too disabled to work as September 17, 2018. However, the Veteran filed a subsequent application on June 4, 2019, wherein he listed the date he became too disabled to work as September 24, 2018. Nevertheless, on this subsequent application the Veteran listed additional employment as a warehouse examiner with the USDA from April 16, 2019 to May 6, 2019. On September 17, 2020, VA sent the Veteran a letter regarding his employment status and requested a reply within 60 days. Specifically, VA notified the Veteran that it had received information from the Social Security Administration that indicated wages above the poverty threshold for calendar year 2019. In this letter the Veteran was informed of VA's proposed plan to discontinue his TDIU benefits based on evidence that he had sustained gainful employment during the previous calendar year. The Veteran was instructed to complete and return VA Forms 21-4140 and VA 21-4138 within 60 days or risk discontinuation of his TDIU benefits. In an October 19, 2020 report of general information, the Veteran reported to VA that he had worked for A.H.C. from October 21, 2019 to October 16, 2020 at a rate of approximately $5,000 per month. He also reported that his service-connected disabilities have not improved. In a follow up report of general information dated November 18, 2020, it was noted that the Veteran failed to return the requested VA forms, so VA called to inquire as to his current work life. The Veteran reported that he resigned from his job at A.H.C. in order to focus on his treatment. On November 23, 2020, more than 60 days after his notification letter, the RO issued a rating decision discontinuing entitlement to TDIU benefits effective December 1, 2020. The Veteran subsequently filed another application for a TDIU on December 31, 2020, listing the date he became too disabled to work as October 16, 2020. At the same time, the Veteran submitted a completed VA Form 21-4140 listing his employment with A.S.H., and VA Form 21-4192, wherein his prior employer indicated that he was no longer working because he "received full VA benefits." As noted above, the Veteran is currently no longer working. He testified at the Board hearing that he does not think he "can handle the stress of a job anymore." The medication that he takes makes him "very tired and that sort of thing." He claimed he suffered from panic attacks at work. The Veteran's representative argued the combined effect of the Veteran's disabilities rendered him unemployable. The Board finds that at this time actual employability has not been established by clear and convincing evidence. Accordingly, entitlement to restoration of a TDIU is warranted. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Ruiz, 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.