Citation Nr: 21005280 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 10-40 596A DATE: February 1, 2021 ORDER For the appeal period prior to May 15, 2015, entitlement to a disability rating in excess of 70 percent for post-traumatic stress disorder (PTSD), is denied. For the appeal period prior to May 15, 2015, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the appeal period prior to May 15, 2015, the Veteran’s PTSD has most closely approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, and corresponding symptomatology. 2. For the appeal period prior to May 15, 2015, the Veteran’s service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the appeal period prior to May 15, 2015, the criteria for a rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. For the appeal period prior to May 15, 2015, the criteria for an award of a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1997 to January 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in September 2020. The claim was remanded for the RO to review records added to the claims file after the February 2020 supplemental statement of the case (SSOC). An October 2020 SSOC indicated review of the additional records. Thus, the Board finds that the RO substantially complied with the September 2020 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). 1. For the appeal period prior to May 15, 2015, entitlement to a disability rating in excess of 70 percent for PTSD The Veteran asserts that his service-connected acquired psychiatric disorder warrants an evaluation in excess of 70 percent. Specifically, in an October 2010 statement the Veteran argued the PTSD is responsible for emotional issues and an inability to cope with life and decisions, as he believes his divorce, anger, anxiety, nightmares, unemployment, and relationships are a direct result of PTSD. Disability ratings 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board notes an October 2005 rating decision granted service connection for PTSD with a 10 percent evaluation effective June 25, 2004. An October 2007 rating decision increased the evaluation to 50 percent, effective January 12, 2007. A November 2015 rating decision increased the evaluation to 70 percent, effective January 12, 2007, and a 100 percent rating effective May 15, 2015. The Veteran’s PTSD is rated under DC 9411, 38 C.F.R. § 4.130. Under DC 9411, the following applies: A 50 percent rating is warranted when there is occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 rating is warranted when 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; 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); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, 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, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Turning to the relevant evidence, in January 2007 the Veteran reported his chief complaint is difficulty sleeping. He has nightmares 2 to 3 times a week. He has restricted affect with family and friends, decreased enjoyment of activities that was previously pleasurable, and feelings of detachment from others. He endorsed irritability, frustration, poor concentration, depressed mood with periods of uncontrolled crying, anhedonia, decreased appetite, and decreased motivation. The symptoms have been present daily for 2 weeks. He has panic episodes 1 to 2 times a week accompanied by a fear of losing control, intense anxiety and physiological arousal, and a fear/worry that these symptoms will occur during his day. He denied hallucinations, manic symptoms, delusions, or obsessive compulsions. He was alert and attentive with appropriate grooming. His mood was depressed, and his affect was appropriate. However, he was sometimes tearful. His speech was normal and thought process was coherent. There was no evidence of hallucinations, delusions, obsessions, homicidal ideations, or suicidal ideations. Insight and judgment was good. In May 2007 VA treatment records the Veteran reported nightmares and difficulty sleeping. He denied homicidal and suicidal ideations. At a July 2007 rescheduled meeting, the Veteran reported he initially minimized his symptoms severity when he reported them in January 2007. He endorsed anger and aggressive thoughts but denied homicidal ideations. He noted, although he is able to focus at work, he sometimes struggle with concentration at home. He endorsed depressed mood and decreased care for his own wellbeing. He specifically, stated, “I know I shouldn’t think this, but I no longer am afraid of dying.” He was tearful but his speech was normal, and his content was organized and coherent. His affect was appropriate with no psychotic symptoms. He denied active suicidal or homicidal ideations. Later in July 2007 the Veteran canceled a mental health appointment, however, he denied psychiatric distress. There was no evidence of homicidal or suicidal ideations. During a September 2007 mental health meeting the Veteran reported he has abstained from Vicodin use and has stopped drinking; however, he is out of his antidepressants and is concerned about his depressive disorder. There was no evidence of homicidal or suicidal ideations. He had normal speech and his content was organized and coherent. In August 2007 VA treatment records, the Veteran reported he was distraught and unable to go to work for 5 days. He went to the hospital for an anxiety attack, as he felt like he could not breath. He adamantly denied homicidal and suicidal ideations or plan. In December 2007 the Veteran reported feeling overwhelmed with anxiety but denied suicidal ideations. He specifically stated, “I’m not sure how I make it through sometimes.” He had child custody court hearings that increased stress levels to the point where he was unable to return to work. He worried that his job was in jeopardy due to frequent absences. He was well nourished, calm and cooperative with questioning and good eye contact. His speech was normal, and his mood was overwhelmed with anxiety, but his affect was calm and appropriate. There was no evidence of suicidal ideations and he did not appear to respond to internal stimuli or delusions. In December 2007 VA treatment records the Veteran reported he has an ongoing conflict with his employer due to missed work. He was overwhelmed by thoughts of returning to work. He denied suicidal ideations. In January 2008 VA treatment records the Veteran reported 2 brief episodes of severe depression with increased fatigue and difficulties getting out of bed in the last month. He was well nourished, neatly groomed, calm and cooperative with good eye contact. His speech was normal, and his mood was okay. There was no evidence of suicidal or homicidal ideations. In May 2008 VA treatment records the Veteran “stopped in from work” to report that he flushed his prescription pain medications to be drug free. After he asked his wife for a divorce, she and his daughters left one night. He has not seen nor spoken with his daughters in 9 months. In December 2008 a VA mental status examination indicated the Veteran was alert, oriented, cooperative, fairly groomed, and anxious with depressed mood. There was no evidence of hallucinations, suicidal ideations, or homicidal ideations, and his insight was good. In May 2009 the Veteran submitted a letter from M.J., Ph.D. The psychologist indicated the Veteran has consistently reported an increase in the frequency and intensity of combat related nightmares, several times a week. The Veteran reported daytime intrusive thoughts associated with combat service and increased emotional reactivity to discussions of combat traumas. He also reported significant anxiety attacks. At a May 2009 group meeting he denied suicidal and homicidal ideations. A psychiatric note indicated the Veteran feels depressed and panics. He continued to deny suicidal and homicidal ideations. He was appropriately dressed and fairly groomed. He was distracted but cooperative with fair eye contact. He demonstrated partial insight and fair judgement. At a different psychiatric meeting he reported anxiety with weekly panic attacks, increased nightmares and flashbacks, poor appetite, and stable sleep. He denied homicidal and suicidal ideations. He was appropriately dressed with fair grooming and hygiene. He engaged in conversation and was cooperative with fair eye contact. A June 2009 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The examiner noted the Veteran was clean and groomed. He was oriented in all spheres. His responses to questions were short but complete. His affect was somewhat restricted with dominant mood being dysphoric and moderately depressed. He reported difficulty concentrating secondary to ongoing child custody case. He reported working as a nurse at a nursing home since April 2009. Although he had missed 2 to 3 days a week in the past year due to symptoms of depression and PTSD, he was offered a full-time position. He was able to maintain hygiene, shop for meals, prepare his meals, and manage his money. He reported living with his significant other and the significant others daughter, whom he has a good relationship with. The examiner noted the Veteran has increased symptoms, including increased nightmares, intrusive thoughts, and recollections regarding his overseas service. The overall impact of the psychological stress pose moderately severe to severe difficulty in both social and occupational interactions secondary to ongoing court litigation. The increase in symptoms should not be considered permanent and should be reevaluated within 2 years to determine the Veteran’s overall symptoms and response to ongoing treatment at that time. In January 2010 VA treatment records the Veteran reported difficulties with anxiety and depression. In April 2010 VA treatment records indicated the Veteran denied suicidal and homicidal ideations. His speech was normal, content was organized, and he demonstrated appropriate affect with normal mood. He had no psychotic symptoms. He was future oriented. In August 2010 VA treatment records, the Veteran acknowledged a text he sent to his ex-girlfriend where he stated, “you make me want to kill myself.” He indicated this text did not reflect any plan or intent to harm himself, as his children and religious beliefs are significant barriers to self-harm. He had a shotgun in his possession, but he indicated he has no ammunition and he has no plan to obtain ammunition. He further stated the text was taken out of context and he never had intent to harm himself. He was assessed as low risk for self-harm given his engagement with services and continued verbal commitment. In September 2010 VA treatment records, the Veteran reported his father died but he is appropriately dealing with the grief. He denied thoughts of self-harm or impulses to relapse. In October 2010 VA treatment records reflected the Veteran was alert, oriented, with logical and goal directed thought processes. His mood was okay, and he appeared tearful but congruent to discussion regarding his father’s death. He denied suicidal ideation or plan. He was assessed as low risk for self-harm. In March 2011 VA treatment records, the Veteran reported he had a new job and was doing great. He was pleasant, cooperative, and future oriented. There was no clinical indication of imminent risk of self-harm. A June 2012 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The examiner determined the Veteran suffered from occupational and social impairment with reduced reliability and productivity. The Veteran reported he never bonded strongly with ex-wife and he had a tumultuous relationship with his ex-girlfriend. He does not have any friends, does not maintain friendships, and rarely answers the phone. quit the VA job due to problems in marriage, PTSD and depression. In 2006 he worked for VA; however, many patients were Iraq war Veterans that would trigger his PTSD. He missed so much work that he was threatened with termination and has not been able to maintain employment consistently. He has not worked for the past year as he quit his last job due to problems in his marriage, his PTSD, and depression. The symptoms that actively applied to him were depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty establishing and maintaining relationship, difficulty adapting to stressful circumstances. The examiner noted the Veteran does not seem to pose any threat of danger or injury to self or others. In June 2013, VA treatment records indicated the Veteran was alert, cooperative, and oriented with good eye contact. He felt depressed because he was not with his kids. His affect was appropriate, and he denied delusions, suicidal ideations, homicidal ideations, and passive thoughts. His thought process was coherent and goal oriented. His judgment and insight was fair. In March 2015, VA treatment records indicated the Veteran was alert, oriented, cooperative, pleasant, with good eye contact and normal speech. He was casually dressed. His affect was appropriate, and he denied delusions, suicidal ideations, homicidal ideations, and passive thoughts. His thought process was coherent and goal oriented. His judgment and insight was fair. A May 2015 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The examiner determined the Veteran suffered from occupational and social impairment with reduced reliability and productivity. The Veteran reported that he has been out of work since 2009 and states that insomnia and interpersonal difficulties led to termination. He has been looking for work, but he is unable to afford renewing his nursing license. He was accepted to vocational rehab and hoping to start school in August for his BSN. The symptoms that actively applied to him were depressed mood, anxiety, suspiciousness, panic attacks (less than weekly), near continuous depression affecting function ability, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effect work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, and neglect of personal appearance and hygiene. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds a rating in excess 70 percent is not warranted for the reasons discussed below. For the appeal period prior to May 15, 2015, the record does not indicate impairment commensurate with total occupational and social impairment. Since January 2007 the Veteran has consistently denied suicidal ideation, hallucinations, and delusions. The record has demonstrated he has consistently presented as alert and oriented, with logical thought processes, and fair or good judgment and insight. Specifically, from January 2007 to March 2015 VA treatment and examination records have indicated the Veteran was oriented and his thought process was logical, and goal directed; insight and judgment was good; and he denied suicidal or homicidal ideations. In fact, in June 2013, VA treatment records indicated the Veteran was alert, cooperative, and oriented with good eye contact. His affect was appropriate, and he denied delusions, suicidal ideations, homicidal ideations, and passive thoughts. His thought process was coherent and goal oriented. His judgment and insight was fair. The evidence has consistently reflected complaints of difficulty sleeping, nightmares, depression, and anxiety as demonstrated in the January 2007, December 2007, and January 2008 treatment records. In fact, in the May 2009 private treatment letter the Veteran submitted, the psychologist indicated the Veteran has consistently reported an increase in the frequency and intensity of combat related nightmares, as well as anxiety attacks. These symptoms are aligned with the symptoms listed in the 70 percent rating. Although the Veteran sent an August 2010 text to his ex-girlfriend indicating “you make me want to kill myself,” he reported this text did not reflect any plan or intent to harm himself, as his children and religious beliefs are significant barriers to self-harm. He did have a shotgun in his possession, but he did not have ammunition. He further stated the text was taken out of context and he never had intent to harm himself. He was assessed as low risk for self-harm given his engagement with services and continued verbal commitment. As such, after review of the evidence as a whole, the Board finds the evidence does not demonstrate a persistent danger of the Veteran hurting himself. Furthermore, the June 2012 VA examiner determined the Veteran suffered from occupational and social impairment with reduced reliability and productivity, which is indicative of a 50 percent rating. In December 2020 the Veteran’s accredited representative submitted a Written Brief Presentation, arguing when an original claim for service connection is submitted, the date that the Veteran submitted the claim or the date the Veteran was released from active service, whichever applies, ultimately controls the effective date for benefits, citing to See McGrath v. Gober, 14 Vet. App. 28, 35 (2000). While the Board agrees with the argument, the Board finds this argument is not applicable in this case. The Veteran originally submitted a psychiatric claim, specifically PTSD, on June 25, 2004. As noted above, an October 2005 rating decision granted the PTSD claim and assigned June 25, 2004 as the effective date. The Veteran did not timely appeal the October 2005 rating decision, therefore, the October 2005 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2018). Thereafter, the Veteran submitted an increased rating claim on June 13, 2007. The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). Furthermore, to the extent the Veteran wishes to revisit the October 2005 decision on any basis other than CUE, such a claim is without merit and must be dismissed as a freestanding claim for an earlier effective date. See Leonard v. Nicholson, 405 F3d 1333 (Fed Cir 2005); Rudd v. Nicholson, 20 Vet. App. 296 (2006). Accordingly, for the appeal period prior to May 15, 2015 an evaluation rating in excess of 70 percent for PTSD is not warranted. 2. For the appeal period prior to May 15, 2015, entitlement to TDIU The Veteran contends that his service-connected disability, specifically his psychiatric disability, renders him unemployable. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. Ray v. Wilkie, No. 17-0781, March 14, 2019. The economic component means “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,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Id. In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (1) disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Initially, the Board notes the Veteran has not completed a VA Form 21-8940 (Veteran’s Application for Increased Compensation based on Unemployability). In such cases, the issue, whether expressly or reasonably raised, is to be administratively denied by the RO. See Fast Letter 13-13, Claims for Total Disability Based on Individual Unemployability (TDIU); see also M21-1MR IV.ii.2.F.27.g, Reasons for Denying IU Claims. While the Veteran has not provided a substantially complete VA Form 21-8940, the M21-1 is not binding on the Board. Furthermore, the record contains educational and vocational history from the VA treatment and vocational rehabilitation records. The Board notes the relevant records consist of VA treatment records. Turning to the relevant evidence, in January 2007 the Veteran reported working for the Department of Veteran Affairs and anticipated returning to school to earn a registered nursing degree. In August 2007 the Veteran reported he was distraught and unable to go to work for 5 days. He went to the hospital for an anxiety attack, as he felt like he could not breath. In October 2007 the Veteran reported he has completed his education though a few credits shy of a Bachelor of Science in nursing. In December 2007 the Veteran reported he has an ongoing conflict with his employer due to missed work. He was overwhelmed by thoughts of returning to job. A June 2009 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. He reported working as a nurse at a nursing home since April 2009. Although he had missed 2 to 3 days a week in the past year due to symptoms of depression and PTSD, he was offered a full-time position. He also reported starting a second job at home depot to supplement income. In November 2009 the Veteran reported working temporarily for the holidays as it was difficult to find stable employment locally. In January 2010 the Veteran reported he did obtain part-time employment with VA, but he was fired when a co-worker made complaints against him. In May 2010 he reported struggling to find a job. In December 2010 the Veteran reported he got a new job working at a Naval hospital. In August 2011 he was still employed at the Naval hospital. However, in October 2011 he was laid off for being unreliable. In December 2011 he reported receiving unemployment benefits as he was still unemployed. In April 2012 he reported starting school. In June 2012 he reported unemployment as he is unable to maintain stable employment. In November 2012 he reported employment with ProCare One as a Registered licensed vocational nurse (LVN), but was not receiving work In August 2013 the Veteran continued working as an LVN but stated he needs to start looking for stable work as there is not enough work for him with this employer. In September 2013 he reported he continues working as an on-call LVN for the night shift, but he was only called for two days this past month; and was still looking for stable job. In October 2013 he was called for 5 days. Later in October 2013 he reported full time employment with a stable income. In December 2013 he reported he was still searching for a stable job. In January 2014 he indicated he has not been called for a job in weeks. In February 2014 he still had not received any calls. In March 2014 he reported unemployment. In November 2014 he was still looking for a job. A May 2015 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The examiner determined the Veteran suffered from occupational and social impairment with reduced reliability and productivity. The Veteran reported that he has been out of work since 2009 and states that insomnia and interpersonal difficulties led to termination. He has been looking for work, but he is unable to afford renewing his nursing license. He was accepted to vocational rehabilitation (VR&E) and hoping to start school in August for his BSN. In May 2019 the Veteran submitted an application for VR&E. For the relevant appeal period, he reported from February 2003 to May 2011 he worked for a staffing agency as an LVN. He left employment to seek treatment for PTSD. From September 2006 to May 2008 he worked as an LVN and was terminated as he was dealing with his PTSD. From September 2010 to May 2011 he worked for the Naval hospital as an LVN but left due to problems with security clearance. He graduated from high school and attended college for nursing. After a review of all of the evidence, the Board finds for the appeal period prior to May 15, 2015 TDIU is not warranted. For the appeal period prior to May 15, 2015, the Veteran is service-connected for PTSD evaluated at 70 percent effective January 12, 2007; hepatitis evaluated at 10 percent effective June 25, 2004; prostatitis evaluated at 10 percent effective June 25, 2004; appendectomy evaluated as noncompensable effective June 25, 2004. For the relevant period the Veteran had a combined evaluation of 80 percent from January 12, 2007. The schedular criteria for TDIU has been met since January 12, 2007, as the PTSD was evaluated at 70 percent and he had a combined evaluation of 80 percent, in accordance with 38 C.F.R. § 4.16(a). However, the evidence does not demonstrate the Veteran was unable to obtain substantially gainful employment. The Board acknowledges the Veteran’s period of unemployment during this appeal period, however the Veteran is service-connected for PTSD at 70 percent. While the PTSD caused some functional impairment with employment, it was shown that the impairment was not such that the Veteran was unable to obtain and maintain a substantially gainful occupation. The evidence indicates the Veteran has maintained intermittent employment as an LVN, as demonstrated in the 2007 to 2015 treatment records and the May 2019 application. Although the Veteran has suffered a level of functional impairment due to his PTSD, the evidence has also demonstrated other reasons for the periods of unemployment. Specifically, in the August 2013 VA treatment records the Veteran reported the agency he was working for did not have enough work. In fact, during the May 2015 VA examination the Veteran reported he has been looking for work, but he is unable to afford renewal of his nursing license. In sum, the Board finds that a preponderance of the evidence is against the Veteran’s service-connected disabilities, without consideration of nonservice-connected factors, having rendered him unable to secure or follow a substantially gainful occupation for the appeal period prior to May 15, 2017. In light of this finding, the Board concludes that, prior to May 15, 2017, the criteria for TDIU were not met. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56 JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.