Citation Nr: 21010860 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 08-09 848A DATE: February 25, 2021 ORDER Entitlement to service connection for bilateral lower extremity radiculopathy, to include as secondary to service-connected degenerative disc disease (DDD) status post lumbar hemilaminectomy, is granted. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide exposure, and/or to include as secondary to service-connected diabetes mellitus and DDD status post lumbar hemilaminectomy, is denied. Entitlement to an effective date earlier than May 13, 2016 for a 100 percent evaluation for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to May 13, 2016 is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that her currently diagnosed bilateral lower extremity radiculopathy was caused by her service-connected DDD status post lumbar hemilaminectomy. 2. The preponderance of the evidence does not demonstrate that the Veteran’s currently diagnosed bilateral lower extremity peripheral neuropathy had its onset during active duty service, manifested within one year after the last date exposed to an herbicide agent during active duty service, manifested within one year of separation from service, or is otherwise etiologically related to service; nor does it show that her bilateral lower extremity peripheral neuropathy was proximately due to, the result of, or aggravated by her service-connected diabetes mellitus or her service-connected DDD status post lumbar hemilaminectomy. 3. The evidence demonstrates that May 13, 2016 is the earliest date entitlement arose for the Veteran’s 100 percent evaluation for PTSD. 4. Prior to May 13, 2016, the evidence does not demonstrate that the Veteran’s service-connected disabilities, by themselves, preclude her from securing and following any substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral lower extremity radiculopathy, to include as secondary to service-connected DDD status post lumbar hemilaminectomy, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide exposure, and/or to include as secondary to service-connected diabetes mellitus and DDD status post lumbar hemilaminectomy, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 3. The criteria for entitlement to an effective date earlier than May 13, 2016 for a 100 percent evaluation for PTSD have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400. 4. The criteria for entitlement to a TDIU prior to May 13, 2016 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1970 to October 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in June 2007, October 2008, and September 2016 by the Department of Veterans Affairs (VA) Regional Office (RO). In the June 2007 rating decision, the RO, in pertinent part, denied entitlement to a TDIU. The Veteran appealed that decision. In the October 2008 rating decision, the RO, in pertinent part, denied service connection for bilateral lower extremity radiculopathy and bilateral lower extremity peripheral neuropathy. The Veteran appealed that decision. In the September 2016 rating decision, the RO, in pertinent part, granted a higher 100 percent evaluation for PTSD, effective May 13, 2016. The Veteran appealed for an earlier effective date for the award of the 100 percent evaluation. Because the Veteran was awarded a total evaluation for PTSD, the RO recharacterized her claim for entitlement to a TDIU prior to May 13, 2016. See February 2017 supplemental statement of the case (SSOC). The Veteran testified before a Veterans Law Judge (VLJ) at a May 2010 Travel Board hearing. A transcript of this hearing is of record. In July 2016, the Veteran was notified that the VLJ who held her May 2010 hearing was no longer employed by the Board. The Veteran declined the opportunity for another hearing. 38 C.F.R. § 20.604. The record reflects that you received a letter indicating that you could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, you do not have a pending hearing request. Given that you provided testimony in a hearing with a VLJ on May 2010, I have considered the transcript of that hearing as evidence in making my decision. This case has an extensive procedural history. Pertinently, after a December 2014 Board decision was appealed to the U.S. Court of Appeals for Veterans Claims (Court), the Court issued a February 2016 memorandum decision setting aside that portion of the decision denying service connection for bilateral lower extremity radiculopathy and remanding the claim for further development and readjudication consistent with the Court’s decision. Subsequently, in September 2016 and September 2017, the Board remanded the issues for entitlement to service connection for bilateral lower extremity radiculopathy, entitlement to service connection for peripheral neuropathy, and entitlement to a TDIU for additional development. As the actions specified in the remands have been substantially completed, the matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). In October 2020, the Veteran submitted additional evidence in support of her appeal along with a signed waiver of RO consideration of evidence. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1305. The Board acknowledges that the appeal of the issue of entitlement to compensation under 38 U.S.C. § 1151 for lung damage and diaphragmatic paralysis has been certified to the Board. A review of the claims file reveals that the Agency of Original Jurisdiction (AOJ) is responding to the Veteran’s request for a hearing before a VLJ on this issue. As such, the Board will not accept jurisdiction over it at this time, but it will be the subject of a subsequent Board decision, if otherwise in order. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as other organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Other organic diseases of the nervous system include peripheral nerve conditions, such as peripheral neuropathy. Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Pertinent law further provides that a Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). For purposes of application of this legal presumption, service in the Republic of Vietnam means actual service in-country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). Furthermore, VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents. Those diseases that are listed at 38 C.F.R. § 3.309(e), including early-onset peripheral neuropathy, shall be presumptively service-connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. For early-onset peripheral neuropathy, the regulation applies where it became manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307(a)(6)(ii). Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Entitlement to service connection for bilateral lower extremity radiculopathy, to include as secondary to service-connected DDD status post lumbar hemilaminectomy The Veteran asserts that her bilateral lower extremity radiculopathy was caused by her service-connected lumbar spine disability. The question before the Board is whether the Veteran’s bilateral lower extremity radiculopathy was caused or aggravated by her service-connected lumbar spine disability. Based on a careful review of all the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral lower extremity radiculopathy is warranted. The record shows that the Veteran has a current diagnosis for bilateral lower extremity radiculopathy. See June 2015 VA Internal Medicine Outpatient Note. The Veteran is service-connected for DDD status post lumbar hemilaminectomy. With regard to the etiology of the Veteran’s bilateral lower extremity radiculopathy, the record includes multiple treatment records finding that the Veteran’s bilateral lower extremity radiculopathy was related to her service-connected lumbar spine disability. According to a September 2007 private discharge summary, the Veteran was diagnosed with chronic lumbar radiculopathy with worsening bilateral lower extremity weakness. An October 2007 private consultation note associated the Veteran’s complaints of low back pain radiating into her right leg as due to a radiculopathy in the lumbosacral spine. Multiple other private treatment records reflect diagnoses for lumbar herniated nucleus pulposus with radiculopathy. See February 2007, August 2007, December 2008, January 2009, and February 2009 private treatment records. Finally, VA treatment records also document diagnoses for lumbar spine radiculopathy. See March 2007, May 2007, January 2008, and June 2015 VA treatment records. Taking into consideration the totality of the evidence, the Board finds that the evidence is at least in equipoise that the Veteran’s currently diagnosed bilateral lower extremity radiculopathy was caused by her service-connected DDD status post lumbar hemilaminectomy. Resolving all reasonable doubt in favor of the Veteran, her claim for service connection for bilateral lower extremity radiculopathy must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide exposure, and/or to include as secondary to service-connected diabetes mellitus and DDD status post lumbar hemilaminectomy The Veteran asserts that her bilateral lower extremity peripheral neuropathy warrants service connection. The question before the Board is whether the Veteran’s current bilateral lower extremity peripheral neuropathy is etiologically related to service or a service-connected disability. Based on a careful review of all the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for bilateral lower extremity peripheral neuropathy is warranted. The Veteran has a current diagnosis for bilateral lower extremity peripheral neuropathy. See October 2016 VA examination. Although the Board recognizes that the record includes evidence showing that the Veteran’s peripheral neuropathy has mostly been identified in her left lower extremity, for the purpose of evaluating the Veteran’s service connection claim, the Board will assume that the Veteran’s peripheral neuropathy diagnosis pertains to both lower extremities. First, the Board notes that other organic diseases of the nervous system, including peripheral neuropathy, are a chronic disease under 38 C.F.R. § 3.309(a). The Board has considered whether the Veteran is entitled to presumptive service connection under 38 C.F.R. § 3.307(a)(3). However, available treatment records do not document treatment for lower extremity peripheral neuropathy until 2001, almost 18 years after her discharge from service. See July 2001 VA treatment record. The Veteran’s service treatment records (STRs) document complaints and treatment for lower extremity pain and tingling. See October 1978, March 1983, September 1983, and November 1983 STRs. In December 1983, the Veteran underwent an electromyography (EMG) and nerve conduction studies (NCS), which revealed normal results. There is no clinical evidence that the Veteran’s bilateral lower extremity peripheral neuropathy existed prior to 2001. Thus, the Board finds that the evidence does not show that the Veteran’s peripheral neuropathy manifested within one year of separation from service; nor does it show that she had continuous symptoms of peripheral neuropathy following service. Accordingly, presumptive service connection on the basis of the Veteran’s peripheral neuropathy as a chronic disease is not warranted. Furthermore, the evidence establishes that the Veteran served in Vietnam from March 1971 to August 1971, therefore, she is presumed to have been exposed to an herbicide agent. However, the evidence does not show that the Veteran was diagnosed with early-onset peripheral neuropathy; the available evidence establishes that her symptoms of bilateral lower extremity peripheral neuropathy did not manifest until almost 30 years after she served in Vietnam. Accordingly, the Veteran is also not entitled to presumptive service connection for bilateral lower extremity peripheral neuropathy based on her presumed herbicide exposure. See 38 C.F.R. § 3.307(a)(6)(ii). Nevertheless, the Board must consider whether the Veteran is entitled to service connection on a direct basis. On that basis, the Board finds that an October 2017 VA examiner’s opinion provides the most probative evidence. The VA examiner opined that the Veteran’s bilateral lower extremity peripheral neuropathy was less likely than not incurred in service or otherwise causally related to her active service, to include herbicide exposure. In making that conclusion, the VA examiner relied on the finding that the Veteran’s December 1983 EMG was normal. Moreover, the VA examiner found that the medical literature showed no significant meta-analysis or case-controlled studies to support any relationship between herbicide exposure and peripheral neuropathy. Accordingly, the Veteran is not entitled to service connection for bilateral lower extremity peripheral neuropathy on a direct basis. Finally, the Board must address whether the Veteran is entitled to service connection on a secondary basis. According to an October 2016 VA examiner’s opinion, the Veteran’s bilateral lower extremity peripheral neuropathy was less likely than not proximately due to, the result of, or aggravated by her diabetes mellitus. In that regard, the October 2016 VA examiner relied on the findings that the Veteran’s diagnosis for peripheral neuropathy predated her diagnosis of diabetes, which was not diagnosed until 2004. Furthermore, given that the Veteran’s diabetes mellitus was well-controlled, the October 2016 found that there was no evidence to support causation or aggravation of her peripheral neuropathy. In an April 2016 VA examiner’s opinion, which also found it less likely than not that the Veteran’s peripheral neuropathy was aggravated by service-connected diabetes mellitus, the April 2016 VA examiner found that her medical records showed no evidence of progression beyond its natural progression of the neuropathy based on the multiple EMG reports from 1997 through 2015. In an October 2012 VA opinion, the VA examiner opined that the Veteran’s bilateral lower extremity neuropathy was less likely than not proximately due to, the result of, or aggravated by her service-connected lumbar spine disability. The October 2012 VA examiner noted that the Veteran’s CT scan of the lumbar spine in 2012 did not show any disc involvement or fracture. A neurological examination conducted in September 2012 was found to be normal. The October 2012 VA examiner concluded that the Veteran’s lumbar spine disability was stable. On that basis, the October 2012 VA examiner found that the Veteran’s lumbar spine disability could not aggravate her bilateral lower extremity peripheral neuropathy. In an October 2017 VA opinion, the VA examiner also opined that the Veteran’s bilateral lower extremity peripheral neuropathy was not caused or aggravated by her service-connected lumbar spine disability. In that regard, the October 2017 VA examiner found that the Veteran’s bilateral lower extremity peripheral neuropathy was more likely due to a local compression of the nerve in the leg than from her lumbar disc disease. The October 2017 VA examiner also found it significant that an EMG and NCS report in 2015 showed normal results in the Veteran’s lower extremities. The Board recognizes that the record also includes a June 2008 letter from the Veteran’s private physician, Dr. F.L. In that letter, Dr. F.L. noted his review of a 2007 EMG/NCS report indicating that the Veteran had mild left peroneal neuropathy. On that basis, Dr. F.L. stated that “this appears to be related her service-connected degenerative disc disease/status post lumbar hemilaminectomy condition.” The Board finds that this opinion is speculative and not based on a thoroughly reasoned analysis; therefore, it cannot be relied on as a basis for granting service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also, Obert v. Brown, 5 Vet. App. 30, 33 (1993). Taking into consideration the collective VA opinions discussed above, and the lack of any persuasive medical evidence to the contrary, the Board finds that the evidence does not support finding entitlement to service connection for bilateral lower extremity peripheral neuropathy is warranted on a secondary basis. Indeed, the only other evidence supporting the Veteran’s contentions is her own lay assertions. Although lay evidence may be competent to establish a medical etiology or nexus, the Veteran has not established that she has the requisite specialized knowledge or training to relate her bilateral lower extremity peripheral neuropathy to her active duty service or a service-connected disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board finds that the Veteran’s lay assertions are not competent to provide an etiological opinion for her bilateral lower extremity peripheral neuropathy, and thus, they offer little probative value. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for bilateral lower extremity peripheral neuropathy on a direct, secondary, or presumptive basis. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Earlier Effective Date 3. Entitlement to an effective date earlier than May 13, 2016 for a 100 percent evaluation for PTSD The Veteran asserts that she warrants an effective date earlier than May 13, 2016 for the award of the grant of a 100 percent evaluation for PTSD. The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application thereof." 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to the rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim." 38 U.S.C. § 5110(b)(2). See 38 C.F.R. § 3.400(o)(2). The phrase "otherwise, date of receipt of claim" applies only if a factually ascertainable increase in disability occurred within one year prior to filing the claim for an increased rating. Harper v. Brown, 10 Vet. App. 125 (1997). Moreover, the term "increase" as used in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400 means an increase to the next disability level. See Hazan v. Gober, 10 Vet. App. 511 (1997). VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R. § 3.157. See 38 C.F.R. § 3.155; Fed. Reg. 57,660, 57,695 (Sept. 25. 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim at issue in the appeal was filed before these amendments, the prior regulatory provisions apply. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2014). A claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. §§ 3.1(p), 3.155 (2014). The regulation which governs informal claims, 38 C.F.R. § 3.155, provides that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant...may be considered an informal claim. Such informal claim must identify the benefit sought. Id. When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. In this case, the Veteran was awarded service connection for PTSD in an October 2012 rating decision and assigned a 50 percent evaluation. In a November 2013 statement, the Veteran, through her representative, specifically found that her appeal had been fully satisfied by that rating decision. The Veteran did not express any disagreement with the disability rating or effective date. However, in that same statement, the Veteran sought a claim for entitlement to a TDIU, based in part, on her now service-connected PTSD. The Veteran did not file an explicit increased evaluation claim for PTSD. Nevertheless, evidence developed in support of the Veteran’s TDIU claim, in the form of a May 2016 VA examination, established that the Veteran’s PTSD had increased in severity. In a September 2016 rating decision, the RO awarded a higher 100 percent evaluation for the Veteran’s PTSD, effective May 13, 2016, the date of the VA examination. Because the higher evaluation stems from the Veteran’s November 2013 TDIU request, the Board finds that November 2013 is the date of the claim at issue. As of May 13, 2016, the Veteran’s PTSD has been evaluated as 100 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126; see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability 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. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). For increased evaluation claims, VA is required to assign an effective date corresponding to the date of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o). As discussed above, the Board has considered the November 2013 TDIU request as the Veteran’s higher evaluation claim for PTSD. The Board must now ascertain when entitlement arose to see which is later. Private treatment records from January 2014 to April 2016 show that the Veteran did not demonstrate psychiatric symptoms consistent with total occupational and social impairment. On that basis, the evidence shows that the Veteran was able to function to work as a substitute elementary school teacher, to attend training for her Federal Emergency Management Agency (FEMA) preparation classes, for which traveling was required, and to work on volunteer assignments for FEMA. Difficulty sleeping was noted, but no suicidal ideas, behavioral problems, dysphoric mood and agitation were found. See May 2015 private treatment record. According to an April 2016 VA Psychiatry Outpatient Note, the Veteran demonstrated no evidence of suicidality or homicidality. She was found to be generally stable in terms of mood symptoms. The Board finds that the May 13, 2016 VA examination is the first evidence of record demonstrating that the Veteran’s PTSD symptoms was consistent with total occupational and social impairment. The available evidence does not demonstrate that the Veteran’s PTSD warrants a total evaluation prior to May 13, 2016. As such, the Board finds that May 13, 2016 is the earliest date entitlement arose for the Veteran’s 100 percent evaluation for PTSD. In summary, the Board finds that the preponderance of the evidence weighs against finding in favor of the Veteran’s claim for an effective date prior to May 13, 2016 for the award of the grant of a 100 percent evaluation for PTSD. Therefore, the benefit-of-the-doubt rule does not apply, and the earlier effective date claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU 4. Entitlement to a TDIU prior to May 13, 2016 The Veteran asserts that her service-connected PTSD and lumbar spine disability prevent her from securing and following any substantially gainful employment. 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. A substantially gainful occupation has been defined as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). Marginal employment shall not be considered substantially gainful employment. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a "living wage." Id. Marginal employment is defined as an amount of earned annual income that does not exceed the poverty threshold determined by the Census Bureau. 38 C.F.R. § 4.16(a). When jobs are not realistically within his or her physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991). 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). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the VA examiners' conclusions are not dispositive. However, the observations of the examiners regarding functional impairment due to the service-connected disability go to the question of physical or mental limitations that may impact his or her ability to obtain and maintain employment. The relevant appeal period has been limited to the period prior to May 13, 2016. The Veteran's PTSD has been evaluated as 100 percent disabling, effective May 13, 2016, and there is no evidence that the Veteran's service-connected disabilities, separate from her PTSD, prevent her from securing and following any substantially gainful employment. Thus, entitlement to a TDIU from May 13, 2016 is moot. Bradley v. Peake, 22 Vet. App. 280, 293-294 (2008). From May 14, 2007 to May 12, 2016, the Veteran meets the schedular requirements for a TDIU, as her combined evaluation is 70 percent from January 10, 2007 and 80 percent from July 24, 2007 (PTSD as 50 percent disabling, effective July 24, 2007; DDD status post lumbar hemilaminectomy as 40 percent disabling; ischemic heart disease as 30 percent disabling; diabetes mellitus as 20 percent disabling; and noncompensable evaluations for residuals of fracture of right third metacarpal and bilateral hearing loss). A careful review of the record indicates that the Veteran in communications for the Department of Defense and at Fort Benning in Georgia from 1983 to 1993. She also worked part-time from March 2004 to January 2006 instructing the visually impaired on how to use computers. Evidence in 2012 to 2015 also indicate that the Veteran worked as a substitute teacher for a few days a month, but she reportedly found it difficult to work because of her respiratory problems. She had completed two years of college. Since her discharge, she has also had computer training, community emergency response training and disaster relief training. See January 2006 VA Counseling Record, May 2007 VA Form 21-8940, May 2007 VA Form 21-4192, September 2012 VA examination and October 2012 VA examination. The Veteran submitted a May 2007 letter from her VA Vocational Rehabilitation Counselor (VRC) to support her claim that her service-connected disabilities prevented her from working. In the letter, the VA VRC determined that it was not feasible for her to benefit from a program designed to return her to gainful employment. Upon reviewing the Veteran’s Vocational Rehabilitation and Employment Services records, the VRC explained in a feasibility worksheet that the Veteran had numerous medical problems and disabilities. Among them, the VRC noted that the Veteran was legally blind, had bilateral hearing loss, was diabetic, and had peripheral neuropathy, Raynaud’s disease, fibromyalgia, depression, and spinal stenosis. Because of those conditions, the VRC found that the Veteran had difficulty hearing with a lot of background noise; had difficulty performing any type of manual work because of her limitations of mobility and ambulation; had balance problems and limitations to stooping, kneeling, and crouching; and had limitations to reaching and handling because of a reduced feeling in her hands and feet. She had prescriptions for hydrocodone and morphine. In a May 2007 report, a certified vocational counselor found that as a result of her limitations, medical conditions, use of medications, difficulty with transportation, numerous medical appointments, and chronic pain, the Veteran was deemed unfeasible for employment. At a June 2007 VA examination, the VA examiner opined that there were no clinical findings that the Veteran’s chronic back condition did not preclude her from obtaining gainful employment. The June 2007 VA examiner noted that the Veteran was observed by the examiner to be organized with her files. She had brought in four organized binders, which were appropriately labeled with each of her conditions. Overall, the June 2007 VA examiner found that the Veteran had multiple complex medical and mental conditions that precluded her from obtaining and maintaining gainful employment. At a February 2014 VA examination, the VA examiner found that the Veteran’s peripheral neuropathy impacted her ability to work. She was reportedly only able to work four hours twice a week at best as a substitute teacher due to her generalized weakness and breathing problems. The Veteran indicated that her private treating physician, Dr. D.P., had recommended that she not return to work. A January 2014 private treatment record documents that Dr. D.P. stated that the Veteran had been offered a job with FEMA, but Dr. D.P. had advised the Veteran that she was opposed to that as the Veteran already had so many pulmonary problems and required hospitalization when traveling. Dr. D.P. noted that despite the Veteran’s health, she continually pushed herself, and she refused to miss her fire academy course scheduled for that day. At an April 2014 private clinic visit, the Veteran was reportedly attending a two-week course for chemical weapons training as part of her FEMA preparation classes. Dr. D.P. explained that she had voiced her concerns to the Veteran about her involvement in such a position when she had multiple medical problems and numerous emergency department (ED) visits for chronic obstructive pulmonary disease (COPD) exacerbation. According to a May 2015 private treatment record, the Veteran was very involved in her community, worked as an elementary school substitute teacher and for FEMA, participated on the reelection fire board and with response preparedness at Cape and Lee Hospitals. She had an upcoming conference that she refused to miss. She was using her walker behind her motorized trike to get around. While working as a substitute teacher, the Veteran experienced chest pain and shortness of breath after reportedly exerting herself during a fire drill. In April 2016, Dr. D.P. noted that the Veteran had been unable to fulfill her FEMA obligations due to her health. Dr. D.P. had recommended no travel until the Veteran had a six-month period without ED visits or hospitalizations as she had a high COPD flare-up risk. The Veteran had traveled for a volunteer assignment for FEMA and triggered her asthmatic symptoms when she was around the transportation of coal. At an April 2016 VA examination, the VA examiner found that from a psychiatric point of view, it appeared that the Veteran’s medical conditions have affected her mental disorder (PTSD, depression and anxiety) to render her unable to seek a gainful employment in either sedentary or physical environment. (Continued on the next page)   Based on the totality of the evidence, the Board finds that the evidence of record does not demonstrate that entitlement to a TDIU prior to May 13, 2016 is warranted. Although the Veteran has not presented evidence that she was engaged in substantial employment as a substitute teacher or working with FEMA, the evidence does show her ability to perform a variety of occupational activities, including traveling for work and attending conferences and trainings. Any documented limitations or recommendations by her private physician on the Veteran’s ability to continue to engage in employment were based mostly on her nonservice-connected pulmonary problems. Furthermore, the finding that the Veteran was deemed not feasible for her to benefit from a vocational rehabilitation program designed to return her to gainful employment was based on a combination of her service-connected and nonservice-connected disabilities. The Veteran has not presented sufficient evidence that her service-connected disabilities, by themselves, would preclude her from securing and following any substantially gainful employment. Accordingly, the Board finds that a TDIU prior to May 13, 2016 is not warranted. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's claim for entitlement to a TDIU prior to May 13, 2016. Therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.