Citation Nr: 21007291 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 10-45 005 DATE: February 9, 2021 ORDER Entitlement to a 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) from May 21, 2009, is granted. Entitlement to a total rating based on individual unemployability (TDIU) from May 21, 2009, to January 4, 2016, is granted. FINDINGS OF FACT 1. From May 21, 2009, the preponderance of the evidence shows that the Veteran’s PTSD was productive of occupational and social impairment with deficiencies in most areas but not total occupational and social impairment at all times during the appeal. 2. From May 21, 2009, to January 4, 2016, the Veteran’s service-connected disabilities precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no higher, for PTSD have been met at all times from May 21, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.14, 4.130, Diagnostic Codes 9411. 2. The criteria for a TDIU have been met at all times from May 21, 2009, to January 4, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from September 1989 to September1993 with the award of the Combat Infantry Badge for service in Southwest Asia. In January 2014 the Veteran testified at a video hearing before the undersigned and a transcript of that hearing has been associated with the claims file. In an April 2014 decision, the Board of Veterans’ Appeal (Board) denied the Veteran’s claims for a rating in excess of 50 percent for PTSD and for a TDIU. The Veteran appealed the April 2014 decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2015 order, the Court granted the parties Joint Motion for Remand (JMR) vacating and remanding the April 2014 Board decision. In October 2015, the Board remanded the appeal. In a December 2020 rating decision, the RO granted the Veteran’s PTSD a 70 percent rating and granted him a TDIU both effective from January 4, 2016. As to the characterization of the issues appeal, given the fact that the appeal comes to the Board from a November 2009 rating decision that granted the Veteran service connection for PTSD effective from May 21, 2009, and during the pendency of the appeal the RO in the December 2020 rating decision granted the 70 percent rating for PTSD and the TDIU effective from January 4, 2016, it has characterized the issues on appeal as they appear above. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); AB v. Brown, 6 Vet. App. 35 (1993). Lastly, the Board notes that additional evidence was associated with the claims file since the RO issued the December 2019 supplemental statement of the case. Nonetheless, given the January 2021 waiver, the Board finds that it may adjudicate the appeal without first remanding it for RO review of this additional evidence. See 38 C.F.R. § 20.1304(c). Post JMR and Remand Compliance Initially, the Board finds that the post-remand development substantially complied with the JMR and Remand. The Board has reached this conclusion because it finds that the VA opinions obtained at the January 2016 VA examinations provide all needed information to rate his PTSD under all applicable rating criteria and adjudicate the TDIU claim to include providing needed opinions as to the Veteran’s ability to obtain and maintain employment. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order). Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with a new VA examination is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Rating Claim The Veteran claims, in substance, that he is entitled to a higher rating for his PTSD at all times during the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s PTSD is rated as 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411 (the General Rating Formula for Mental Disorders (General Formula)) from May 21, 2009. The General Rating Formula provides a 50 percent rating when the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent 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 depressive disorder 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted when the evidence shows 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; memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Initially, the Board finds that because this claim for a higher rating for PTSD was not pending before the agency of original jurisdiction on or after August 4, 2014, adjudication of this claim can include a discussion of the Global Assessment of Functioning (GAF) scores found in the record. But see Golden v. Shulkin, 29 Vet. App. 221 (2018). In this regard, GAF scores are a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness.” See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). Next, and as noted by the JMR, the record shows that the Veteran’s adverse PTSD symptomatology includes suicidal ideation, thoughts of overdosing, domestic violence incidents, physical altercations at work, his separation from his common law wife, and the resumption of drinking. See, e.g., VA examinations dated in September 2009, January 2011, March 2011, and January 2016. In addition, the record shows the Veteran’s PTSD caused problems with the following: a depressed and anxious mood and affect as well as mild cognitive impairment and a passive death wish (see VA examination dated in September 2009); a depressed, blunted, and guarded affect as well as minor deficits in short-term memory (see January 2011 VA examination); mild memory loss or impairment (he has difficulties remembering dates and time frames as well as remembering recent information), monthly panic attacks, and moderate to severe depression and anxiety (see March 2011 VA examination); and his affect being markedly agitated/anxious/irritable, a depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, a flattened affect, disturbances of motivation and mood, and impaired impulse control such as unprovoked irritability with periods of violence (see January 2016 VA examination). Additionally, and as also noted by the JMR, the record shows the Veteran being given GAF scores as low as 47 (see, e.g., VA treatment record dated in August 2010) and 50 (see, e.g., VA treatment record dated in June 2009; VA examination dated in September 2009) on occasion which are indicative of serious symptoms. In this regard, under AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994) (DSM IV) (i.e., as it existed at the time of the claim) a GAF score of between 41 and 50 indicates that the examiner believes that the veteran has “serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friend, unable to keep a job)” and/or “some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work . . .).” Tellingly, the Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.”). (At the time of the Board’s 2014 earlier decision Bankhead did not exist.) The Court has also held that, “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Therefore, when considering the frequency, severity, and duration of the Veteran’s impairment to assess his disability picture and when resolving all reasonable doubt in his favor, the Board finds that the most probative evidence of record are the above examinations and treatment records that shows that the PTSD adverse symptomatology approximates the criteria for a 70 percent rating at all times from May 21, 2009, because his adverse symptomatology includes, among other things, suicidal ideation, domestic violence/physical altercations, anxious/depressed mood and affect, mild cognitive impairment as well as a depressed, blunted, and guarded affect and minor deficits in short-term memory, moderate to severe depression and anxiety, his affect being markedly agitated/anxious/irritable, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, a flattened affect, disturbances of motivation and mood, and impaired impulse control, such as unprovoked irritability with periods of violence, as well as the GAF scores less than 51 seen in the record. See 38 C.F.R. § 4.130; Owens, supra; Fenderson, supra; Hart, supra. However, the Board finds that the criteria for a higher rating of 100 percent are not met at any time from May 21, 2009. In this regard, the Board finds that that the most probative evidence of record shows his PTSD does not cause total social and occupational impairment despite the problems seen with, among other things, suicidal ideation and violence seen in his medical records. In fact, the Board finds that the Veteran’s own statements did not support such a finding. In this regard, while the criteria for a 100 percent rating specifically identifies problems with being a “persistent” danger of hurting self and while this is not exclusive symptomatology the Board finds the fact that the record, including the September 2009, January 2011, March 2011, and January 2016 VA examinations as well as the VA treatment records is negative for a suicide plan or attempt, weighs heavily against finding that the appellant’s PTSD causes a “persistent” danger of hurting self despite the suicidal ideation reported in his medical records. See Owens, supra. In this regard, the Board finds the Veteran’s own words to the September 2009, January 2011, March 2011, and January 2016 VA examiners where he denied, in substance, current thoughts of suicide or a plan weights against the claim. See Owens, supra. Likewise, while the criteria for a 100 percent rating also specifically identifies a problem with a “persistent danger of hurting … others” and, while this is also not exclusive symptomatology, the record documents domestic violence and physical altercations at work as well as the Veteran getting intoxicating and punching holes in walls. Additionally, VA treatment records show that the Veteran attended an anger management group. The Board also notes that the Veteran told some of his VA examiners that he has been feeling as if he might lose control of himself and use excessive force on his job as a bouncer. Moreover, the January 2016 VA examiner opined that the Veteran had impaired impulse control, such as unprovoked irritability with periods of violence. However, the Board nonetheless finds the fact that the record, including the September 2009, January 2011, March 2011, and January 2016 VA examinations as well as the VA treatment records, being negative for a plane or attempt to hurt others weighs heavily against finding that the Veteran’s PTSD causes a “persistent” danger of hurting others despite the history of document domestic violence and physical altercations at work. In this regard, the Board finds the Veteran’s own words to the September 2009, January 2011, March 2011, and January 2016 VA examiners where he denied, in substance, having homicidal thoughts, plans, or intentions again weights against finding this adverse symptomatology supports the claim for a 100 percent rating. See Owens, supra. The Board also notes that the criteria for a 100 percent rating specifically identifies problems with “memory loss for names of close relatives, own occupation, or own name” and while not exclusive symptomatology the Board also notes that the Veteran told all of his VA examiners that he had a problem with his memory and/or concentration. Moreover, the September 2009 VA examiner opined that he had mild cognitive impairment, the January 2011 VA examiner opined that he had minor deficits in short-term memory, and the March 2011 VA examiner opined that he had mild memory impairment such as for dates and time frames. However, the Board finds the fact that the September 2009 VA examiner opined that his cognitive impairment was mild, the January 2011 VA examiner characterized the memory loss as minor, the January 2011 VA examiner opined that his long-term memory and concentration were intact, the March 2011 VA examiner characterized the memory loss as mild, and the January 2016 VA examiner opined that his memory was intact as well as because the VA treatment records are negative for more severe memory loss than was reported by the VA examiners weighs against finding that the cognitive impairment and/or the memory loss reported by the VA examiners is the type of memory loss contemplated by the criteria for a 100 percent rating. See Owens, supra. Similarly, while not exclusive symptomatology the criteria for a 100 percent rating also specifically identifies problems with “gross impairment in thought processes or communication,” “persistent delusions or hallucinations,” “grossly inappropriate behavior” and “disorientation to time or place,” and the Board notes that the record, including the March 2009, January 2011, March 2011, and January 2016 VA examinations as well as the VA treatment records, are negative for such adverse symptomatology. In fact, at the March 2009 VA examination the Veteran specifically denied having problems with psychotic symptoms including hallucinations, paranoid ideation, delusions, obsessive thoughts, and/or ritualistic behaviors and on examination his thought process was logical and goal directed, his thought content was negative for any hallucinations, delusions, or paranoid ideation, and he was alert and oriented to person, place, time, and situation. Moreover, the January 2011 VA examiner noted that that the Veteran did not report having grossly inappropriate behavior as well as opined that his thought processes and communication are not impaired. Likewise, the March 2011 VA examiner noted that the Veteran did not have obsessive or ritualistic behavior that interferes with routine activities, irrelevant, illogical or obscure speech patterns, or impaired impulse control. Similarly, at the January 2016 VA examination the Veteran denied symptoms of mania, hypomania, and psychotic symptoms and there was no evidence of delusion, hallucinations, or other psychotic symptoms and the examiner opined that there was no evidence of psychosis as well as that his thoughts were appropriately abstract and he was fully oriented. Again, the Board find the Veteran’s own words and the VA examiners opinions weigh heavily against finding that his PTSD causes the type of adverse symptomatology required for a 100 percent rating. See Owens, supra. Lastly, while not exclusive symptomatology, the Board nonetheless finds the fact that the Veteran’s September 2009, January 2011, March 2011, and January 2016 VA examinations as well as the VA treatment records are uniformly negative for his PTSD causing problems with symptoms such as an “intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene)” weighs against finding that his PTSD causes total social and occupational impairment. In fact, the September 2009 and January 2016 VA examiners opined he was able to maintain activities of daily living including personal hygiene and at the examination he was neat, clean, and casually dressed or his grooming and hygiene were appropriate. Likewise, the Veteran told the January 2011 VA examiner that he is able to do activities of daily living on a variable basis based on his mood and he does his own self-care. Similarly, the March 2011 VA examiner opined that the Veteran was able to maintain minimal personal hygiene and other basic activities of daily living. These medical opinions weigh heavily against finding that his PTSD causes the type of adverse symptomatology required for a 100 percent rating. See Owens, supra. Simply stated, it is important for the Veteran to understand that not all the evidence in this case supports the 70 percent finding, let alone a higher rating. Next, the Board finds that the preponderance of the evidence shows that the Veteran’s PTSD does not cause total social impairment even though, as discussed below in connection with his claim for a TDIU, it causes total occupational impairment. See Owens, supra. In this regard, the Board notes that the Veteran told the September 2009 VA examiner that he shuts down and withdraws from other people, has no real relationships or friends, was divorced, and has almost no energy, no motivation, and no interests. Likewise, he told the January 2011 VA examiner that he lives in an apartment by himself. Moreover, he told the March 2011 VA examiner that “‘the biggest thing is avoidance and isolation, anxiety, and I get very irritable easily;’ avoids communicating with other people and has had no contact with family or friends—’dreaded; calling his mother on her birthday yesterday; avoids contact with people both in general and in more crowded places and interacting with others can trigger irritability…” Likewise, the Veteran told the March 2011 VA examiner that he had no social relationships outside of his girlfriend. However, the Veteran also told the September 2009 VA examiner that he was living with his girlfriend, who he identified as his new common law wife, and her daughter. Moreover, a February 2010 VA treatment records shows that, since separating from this girlfriend in January 2010, he still had lunch approximately once a week with her daughter. Likewise, the January 2011 VA examiner opined that the Veteran’s social functioning is grossly intact for basic skills, even though he is quite anxious, isolative, and withdrawn. Moreover, the Veteran told the March 2011 VA examiner that since his divorce in 2004 he has had two relationships with the first one lasting five years and the current one having been going on for six months. Additionally, the Board notes that the January 2016 VA examiner noted that the Veteran’s ex-wife accompanied him to the examination and the appellant still had regular contact with her. The Board finds that the Veteran’s reports of being able to obtain and maintain long term relationships with his girlfriends, a girlfriend’s daughter, and his ex-wife weighs against finding his PTSD causes total social impairment despite his many social problems. See Owens, supra. Next, as reported above and as noted in the JMR, the record shows the Veteran being assigned a GAF score as low as 47 because of his PTSD. However, the Veteran’s medical records on most occasions show his GAF was higher than 47, including at his VA examinations where it was 50 at the September 2009 VA examinations, 56 at the January 2011 VA examination, and 52 at the March 2011 VA examination. In this regard, the Board notes that GAF scores between 51 and 60 indicate that the examiner believes that the Veteran’s PTSD is only manifested by “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or schooling function (e.g., few friends, conflicts with peers or co-workers).” See DSM IV. In fact, the Board notes that VA treatment records even noted that the Veteran’s GAF score was 75 in 2018 and 2019 (see VA treatment records dated in April 2018 and March 2019) and 65 in 2019 and 2020 (see VA treatment records dated in August 2019, November 2019, January 2020, and May 2020). In this regard, under the DSM IV a GAF score of 71 to 80 indicates that the VA examiner believed that “if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g. difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). A GAF score of 61 to 70 indicates that the examiner believed that his PTSD is manifested by “[s]ome mild symptoms (e.g., depressed mood and mild insomnia) Or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.” Given the above record which shows that the Veteran’s GAF scores are 47 or higher at all times during the appeal, sometimes as high as 75, the Board finds that they do not support the appellant’s claim for a rating in excess of 70 percent for his PTSD at any time from May 21, 2009. See Owens, supra. While the Veteran clearly has problems due to his PTSD (this is not in dispute) which cause significant social and occupational impairment, the only question is the degree of the problem. Without taking into consideration his statements the 70 percent finding could not be justified based on this medical evidence. See Davidson, supra. Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran’s PTSD is not manifested by symptomatology that causes total social impairment at any time from May 21, 2009, even though he had not worked full-time/been gainfully employed since 2006. See Owens, supra. Therefore, the Board finds that the criteria for a 100 percent rating are not met for the Veteran’s PTSD at any time from May 21, 2009, because his PTSD does not cause both total occupational and social impairment. See 38 C.F.R. § 4.130; Fenderson, supra; Hart, supra. In reaching all the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim for a rating in excess of 70 percent for PTSD from May 21, 2009, the Board finds that the doctrine is not for application. See Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. The TDIU Claim While the Veteran already received a TDIU January 4, 2016, he claims that his service-connected disabilities prevent him from working at all times during the pendency of the appeal which runs from May 21, 2009. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran’s service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The record shows that from May 21, 2009, to January 4, 2016, the Veteran was service-connected for the following disabilities: • PTSD rated as 70 percent disabling and • multiple lipomas rated as noncompensable. In summary, the Board finds that this record shows that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(4) from May 21, 2009, to January 4, 2016, because he has one disability rated as 40 percent or higher and had a combined rating of 70 percent or higher at all times from May 21, 2009, to January 4, 2016. Thus, the question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment at any time from May 21, 2009, to January 4, 2016. 38 C.F.R. § 4.16(a). As to his employment history, at the September 2009 VA examinations the Veteran reported that his last full-time employment was for an electric company, where he was a warehouse clerk. He also reported that he quit that job in the summer of 2006 due to anger and irritability issues. As to his education history, at the January 2011 VA examinations the Veteran reported that he graduated from high school and attended college on a football scholarship, however after an injury in his first year he dropped out to join the military. Additionally, in the January 2014 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), he reported, in substance, that he had not worked full-time and became too disabled to work in July 2006 because of his service-connected disabilities. He also reported that he quit his “last job due to anger, irritability issues and depression. I couldn’t handle it anymore.” As to his work history the Veteran reported that from October 2009 to the present (i.e., January 2014) he worked part-time (25 hours a week) earning $1000.00 a month as a bouncer. At this time, the Veteran did not provide any information about his pre October 2009 employment. As to his education, the Veteran reported that he had 4-years of high school. Initially, the Board will address the Veteran’s post-October 2009 part-time employment as a bouncer at a bar. In this regard, under VA regulations marginal employment is defined as when the Veteran’s earned annual income does not exceed the amount established by the United States Department of Commerce as the poverty threshold for one person shall not be considered substantially gainful employment. The poverty threshold for one person under 65 years of age in 2013 was $12,119. See https ://www.census.gov/hhes/www/poverty/data/threshld/. On his application for TDIU from January 2014, the Veteran estimated that his total earned income for the past twelve months was $12,000 (i.e., $1000.00 a month). Therefore, under VA regulations, the Board finds that the Veteran’s part-time job constitutes marginal employment and is therefore not substantially gainful employment at any time from May 21, 2009, to January 4, 2016. Next, as to the Veteran’s noncompensable multiple lipomas, the Board notes, as noted in the JMR, the November 2009 rating decision that granted service connection for multiple lipomas also noted that the September 2009 VA examination listed over 43 separate lipomas, most over several centimeters in diameter, all over appellant’s face and body as well as noted that he underwent surgical removal of lipomas on a regular basis. Moreover, as to the Veteran’s PTSD, the Board notes that the January 2016 VA examiner opined that that “[i]n the opinion of this provider, from a psychiatric standpoint, the veteran likely does not maintain the cognitive, emotional, and behavioral capacity to engage in simple tasks in a loosely supervised environment, as his behavioral health symptoms are likely to interfere with performance of these tasks on a somewhat regular basis.” In this regard, and as noted above, the Court has also held that, “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.” Tatum, supra. Therefore, as to whether the Veteran is unable to secure or follow a substantially gainful occupation performing jobs that require non-sedentary and sedentary employment, including his past employment as a warehouse clerk and/or full-time as a bouncer as well as other possible employment that could make use of his work experience, 4-years of high school, from May 21, 2009, to January 4, 2016, the Board finds that the medical records show that the problems caused by his service-connected PTSD and lipoma adversely impact his ability to work in either of these fields because of the overall impairment they cause to his body and mind to include the stamina needed to work a full-day and interact effectively with co-workers and customers. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that his service-connected PTSD would make it dangerous for the Veteran to work in most non-sedentary employments from May 21, 2009, to January 4, 2016. Id. Given the above, the Board finds that the Veteran’s service-connected disabilities prevent him from securing or following a “substantially gainful” occupation from May 21, 2009, to January 4, 2016, given his prior vocational history, work experience, his education, and the impact his service-connected PTSD and lipomas have on obtaining and maintaining substantially gainful non-sedentary and sedentary employment including in his past employment as a warehouse clerk and/or full-time as a bouncer because of the problems they would cause in any work environment. Lastly, the Board notes that there are some gaps of information in this case. However, the Board is attempting to address this issue without a remand to the RO for more development in light of the length of time the appeal has been pending as well as to avoid any further litigation. A remand would delay the full adjudication of this case. See Sabonis, supra. (Continued on the next page)   Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment from May 21, 2009, to January 4, 2016, given his prior vocational history, work experience, his education, and the impact his service-connected disabilities have on employment and the claim for a TDIU is granted from May 21, 2009, to January 4, 2016. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.