Citation Nr: 21012759 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 12-32 971 DATE: March 5, 2021 ORDER Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) prior to December 15, 2016 is denied. Entitlement to an initial evaluation in excess of 70 percent for PTSD with MDD from December 15, 2016, has been withdrawn. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 15, 2016 is denied. FINDINGS OF FACT 1. Prior to December 15, 2016, the Veteran’s PTSD with MDD was manifest by no more than moderate symptomatology resulting in occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas or total occupational and social impairment is not demonstrated. 2. On January 21, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of the issue of entitlement to an evaluation in excess of 70 percent for PTSD with MDD from December 15, 2016, is requested. 3. The Veteran does not meet the schedular criteria for TDIU prior to December 15, 2016, and his then service-connected disabilities are not shown during this period to render him unable to obtain and retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 50 percent for PTSD with MDD prior to December 15, 2016, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for withdrawal of entitlement to an initial evaluation in excess of 70 percent for PTSD with MDD from December 15, 2016, by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for assignment of a TDIU prior to December 15, 2016, have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.3, 4.10, 4.16, 4.73, (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1967 to October 1969. In October 2016, the Board of Veterans’ Appeals (Board) remanded this case for further development. After the additional development was completed, in a January 2017 rating decision, the Regional Office (RO) increased the Veteran’s rating to 70 percent effective December 15, 2016 (date of VA examination) for PTSD with MDD and granted the Veteran’s claim for TDIU effective the same date. In a decision of July 2018, the Board denied entitlement to an evaluation in excess of 50 percent for PTSD with MDD prior to December 15, 2016, and in excess of 70 percent thereafter; and entitlement to a TDIU prior to December 15, 2016. That determination was subsequently appealed to the United States Court of Appeals for Veterans Claims (Court) which, in a March 2020 Memorandum Decision, vacated the Board’s July 2018 decision, and, in so doing, remanded the Veteran’s case to the Board for action consistent with that Memorandum Decision. 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) prior to December 15, 2016. Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA’s defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of the assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period (i.e., “staged ratings”). Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD with MDD has been assigned an evaluation of 50 percent prior to December 15, 2016, and 70 percent thereafter, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria pertaining to the Veteran’s appeal is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 50 percent evaluation is warranted where the disorder is manifested by 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 for example, 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. Id. A 70 percent evaluation is warranted where the disorder is manifested by 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 that is 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 work-like setting; and an inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. Prior to August 4, 2014, VA’s Rating Schedule for mental disorders was based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). 38 C.F.R. § 4.130. As in this case, diagnoses many times included an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The “GAF is a scale reflecting the ‘psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Carpenter v. Brown, 8 Vet. App. 240 (1995) (quoting American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders, 4th Ed. (1994) (DSM-IV)). The GAF score is based on all of the Veteran’s psychiatric impairments. Pertinent to this case, a GAF score of 41 to 50 is assigned where there are “serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” DSM-IV. Scores from 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers and co-workers). Id. In 2013, the DSM-IV was updated with a 5th Edition (DSM-5), which recommends that GAF scores be dropped due to their “conceptual lack of clarity.” See DSM-5 at 16. However, because the Veteran’s claim was pending before the Board on or before August 4, 2014, the date VA amended its regulation to remove outdated references to DSM-IV and replaced them with references to DSM-5, the DMS-IV criteria will be discussed in the analysis set forth below. See Golden v. Shulkin, 29 Vet. App. 221 (2018). Further, ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase “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 only 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). The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the General Rating Formula. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. The Board notes at the outset that the Court has previously provided direction on the interpretation and the application of the factors for evaluation of the several ratings under the General Rating Formula in 38 C.F.R. § 4.130 in Bankhead v. Shulkin, 29 Vet. App. 10 (2017). In now looking to the Court’s points in Bankhead for guidance, the Board should not confine its analysis only to identifying the presence of certain symptoms to determine the appropriate rating under the General Rating Formula, but also must draw fact-based conclusions as to whether those symptoms have caused the level of occupational and social impairment associated with a particular disability rating. Id. at 14. See also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Indeed, the Board acknowledges that the presence of suicidal ideation alone conceivably might cause occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. Bankhead, 29 Vet. App. at 19. Nonetheless, in evaluating symptoms and signs to determine their effect on the level of occupational and social impairment in order to arrive at an appropriate disability rating, the Board will look to their severity, frequency and duration, consider their impact as a whole and make a quantitative assessment accordingly. Id. at 26-27. See also Vazquez-Claudio, 713 F.3d at 115-17. See generally Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990); Mittleider v. West, 11 Vet. App. 181, 182 (1998). As noted above, the Veteran’s PTSD has been assigned an evaluation of 50 percent prior to December 15, 2016, and 70 percent thereafter. After reviewing the evidence of record under the laws and regulations as set forth above the Board concludes that an initial evaluation in excess of 50 percent is not warranted throughout the period prior to December 15, 2016. Turning to the record, VA treatment records reveal that the Veteran first received psychiatric treatment in August 2009. At that time, he reported a history of irritability and some insomnia; occasional crying and avoidance of others were also reported. He indicated that his memories of his time in Vietnam were worsening since he retired from his post-military career. The VA psychiatrist assigned the Veteran a GAF score of 57. In October 2009, the Veteran was seen for treatment at a VA medical center. At the time of the encounter, the Veteran reported that he felt he was doing a little better. He reported sleeping more, but still waking up early. The Veteran also reported that he was a little less depressed and less irritable. The provider reported that the Veteran was calm and that he related well. Further, the Veteran was pleasant, polite and cooperative. It was noted that the Veteran’s mood was maybe a little less down with appropriate affect and no evidence of psychosis. The Veteran was alert and oriented in all four spheres. Likewise, a VA psychiatric note from November 2009 reported that the Veteran felt he was doing much better. He reported sleeping more and that he was not aware of any nightmares; however, he indicated that his wife sometimes told him that he was restless. He presented calm and he related well. The examiner noted that the Veteran was much more verbal, pleasant, polite, and cooperative. His thought processes were intact, and his mood was level with appropriate affect that was bright at times. There was no evidence of psychosis and the Veteran was alert and oriented in all four spheres. Also, in November 2009, the Veteran was afforded a VA examination in connection with his claim. At the time of the examination, the examiner noted that the Veteran’s speech was unremarkable, his affect was flat, and his mood was depressed. The Veteran presented for the examination clean and casually dressed. He was cooperative and attentive. Additionally, the Veteran’s thought process and content were unremarkable, and he had no delusions. It was noted the Veteran slept a few hours per night with frequent awakenings. He had no hallucinations, inappropriate behavior, obsessive or ritualistic behavior, homicidal thoughts or suicidal thoughts. He also did not report having panic attacks. His memory was normal. The examiner found the Veteran’s PTSD symptoms occurred weekly or monthly and were mild in severity. Nevertheless, the examiner noted that the Veteran had problems with irritability and angry outbursts and that he was somewhat emotionally detached and a bit socially isolated. Further, the examiner indicated that the Veteran’s irritability affected his marriage and had presented problems on the job in the past. It was also noted that the Veteran spent more time alone now than previously. Still the examiner determined that although the Veteran had symptoms of depression that were secondary to PTSD, the Veteran’s overall symptoms were mild. Specifically, the examiner noted that while he had some irritability and emotional detachment, he also had some relationships and activities that he enjoyed. VA treatment notes from February 2010 reveal that the Veteran reported that he continued to improve. He indicated that he was sleeping more, but that his sleep pattern was sometimes broken. The Veteran stated that he was still having some nightmares, but no night sweats. He reported being less depressed and irritable and that he and his wife were getting along well. The examiner noted that the Veteran presented calm and he related well. At the time of the encounter, the Veteran was fairly verbal, pleasant, polite, and cooperative. His thought process was intact, and his mood was level with appropriate affect that was bright at times. There was no evidence of psychosis. The Veteran was alert and oriented in all four spheres. The examiner determined that there was a gradual improvement in the Veteran’s PTSD and dysthymia symptoms. Another VA treatment note from May 2010 revealed that the Veteran reported that he was sleeping a little less, but he had good overall energy. He reported that he had nightmares one to two times a month. Further, the Veteran reported that he had been socializing well, to include attending a church banquet and that he was comfortable in public. The examiner noted that the Veteran’s irritability was in good control. At the time of the encounter, the Veteran appeared calm and he related well. The examiner reported that the Veteran was fairly verbal, pleasant, polite, and cooperative. His thought process was reported as intact. His mood was level with the appropriate affect, that seemed bright at times. There was no evidence of psychosis and the Veteran was alert and oriented across all four spheres. The examiner determined that the Veteran’s dysthymia was in remission. Additionally, a VA treatment note from August 2010 revealed that the Veteran reported that he was doing well, but his wife told him that he had become more irritable. He reported having had a recent anger outburst that surprised and upset him. The Veteran indicated that he was sleeping seven hours at night. At the time of the encounter, the Veteran appeared clean and casually dressed. The examiner noted that the Veteran was pleasant, polite, and cooperative. His thought process was intact. The examiner further noted that the Veteran’s mood was down with the Veteran close to tears when speaking about his angry outburst. There was no evidence of psychosis noted and the Veteran was alert and oriented in all four spheres. The examiner noted that the Veteran’s PTSD and dysthymia had increased in symptoms. In September 2010, the Veteran was afforded another VA examination in connection with his claim. At the time of the examination, the examiner found a diagnosis of major depressive disorder secondary to PTSD. At the time of the examination, the examiner noted that the Veteran was able to concentrate and showed no evidence of memory problems. The Veteran presented for the examination clean and adequately groomed. He was oriented in all spheres and his speech was normal. The Veteran was able to control his emotions, but he appeared depressed. The Veteran did not exhibit evidence of psychosis or cognitive problems. He denied suicidal or homicidal ideation. The examiner noted the Veteran’s hyperarousal symptoms included insomnia, anger, concentration problems, and exaggerated emotional response to stimuli that remind him of trauma. His reexperiencing symptoms included intrusive memories and psychological responses to stimuli that reminded him of his trauma. His avoidance symptoms included avoidance of thoughts and memories and places and emotional numbing. He experienced anxiety and significant levels of depression, usually after being reminded of trauma. The examiner found the Veteran’s PTSD had worsened since his last VA examination. Further, the September 2010 VA examiner explained that the Veteran’s problems had compromised his ability to work and his social and marital functioning was also affected. Specifically, the examiner noted the Veteran’s avoidance and depressive symptoms increased his tendencies toward social isolation and made intimate relations with his wife difficult. He reported few friends and little social life. He was able to get along with other people, but his motivation to engage in regular social behavior was limited, partially as a result of avoidance. His social functioning and relationship functioning were worse as a result of increased irritability and increased avoidance and numbing. His numbing and irritability led to increased marital conflicts and decreased marital satisfaction. With respect to the impact on his occupational functioning, the examiner noted the Veteran’s concentration problems, avoidance, and irritability had played a major role in his retirement and he would experience great difficulty working at that time because of his PTSD and secondary depression. The examiner assigned the Veteran a GAF score of 45. Next, VA treatment records from October 2010 reveal that the Veteran reported that he was doing a little better. He indicated that he still got angry quickly and that he just began anger management, which he reported had been helpful. The Veteran reported that he was coping better overall and that he was sleeping seven hours most nights without many nightmares. The examiner noted that the Veteran was clean and casually dressed at the time of the encounter. The Veteran was noted to be pleasant, polite, and cooperative. His thought process was intact. The examiner noted that the Veteran’s mood and affect were much lighter at this visit. There was no evidence of psychosis and the Veteran was alert and oriented across all four spheres. The examiner found that the Veteran’s PTSD and dysthymia had decreased in symptoms. Later, in a December 2010 VA treatment note, the Veteran reported doing well again. He indicated that he had no further anger outbursts. Also, the Veteran reported that he felt his irritability was down. He continued to report sleeping fairly well most nights and he reported occasional nightmares. The Veteran also showed concern about his daughter recently being laid off from her job. A February 2011 VA treatment note reveals that the Veteran reported that he continued to do fairly well. His anger and irritability had been under control. The Veteran reported one episode of thinking about his service in Vietnam that triggered a crying spell. He reported generally sleeping well and that he had not had any recent nightmares. Equally, in May 2011, VA treatment records show that the Veteran continued to do fairly well. Again, the Veteran reported that his anger and irritability had been under control. The Veteran reported that he had problems getting along with his wife of 40 years; specifically, that he just walked away from her that morning and did not speak to her. He expressed worry that his daughter was still having trouble finding employment. The Veteran reported that he was generally sleeping well, with no recent nightmares, which occurred only every so often. He related that he only rarely cried. There was no evidence of suicidal ideation. The Veteran appeared clean and casually dressed; he was pleasant, polite, and cooperative. His thought process was intact, and his mood was level with some bright affect. There was no evidence of psychosis and the Veteran was alert and oriented in all spheres. The examiner noted that the Veteran’s PTSD dysthymia symptoms decreased In June 2011, the Veteran was afforded a VA examination in connection with his claim for a TDIU. After a review of the Veteran’s claims file, the examiner found that the Veteran’s mental health symptoms and related impairment since September 2010 had undergone a sustained decrease. Further, the examiner noted that the Veteran’s symptoms were in the mild range. In August 2011, VA treatment notes show that the Veteran reported that he had been up and down since the last encounter. He indicated that he lost his temper on one occasion at church, where he reported that he plays music, but there was no violence. The Veteran reported that he was sleeping 6.5 hours a night, but with more occasions of restless sleep. He further indicated that his relationship with his wife was so-so, but that they were hanging in there. The Veteran reported that he still has a crying spell maybe once a week, but he did not have suicidal ideation. The Veteran presented clean and casually dressed; he was pleasant, polite, and cooperative. His thought process was intact, and his mood was level with some bright affect. There was no evidence of psychosis and the Veteran was alert and oriented in all spheres. The examiner noted that there was a slight increase in the Veteran’s PTSD symptoms, but no precipitating event was reported, and the Veteran’s dysthymia was about the same as the last encounter. February 2012 VA treatment notes indicated that the Veteran reported that he still had some crying spells and that he was about the same. He indicated that three friends from Vietnam passed away and that this made him sad. The Veteran reported that he had not had any recent loss of temper and that he was sleeping pretty well. He denied any suicidal ideation and he reported concern about his daughter’s employment opportunities. The Veteran presented clean and casually dressed; he was pleasant, polite, and cooperative. His thought process was intact, and his mood was low with brief tearful affect when talking about his friends who had passed away. In November 2012 the Veteran reported his sleep varied and he was somewhat irritable. He reported no crying, nightmares, night sweats, or marital discord; however, he did not get much pleasure in life or in his relationship. He presented clean and casually dressed, wearing an American flag necklace for Veteran's Day. The Veteran found humor in the response of others to his necklace that day. He was pleasant, polite, and cooperative. His thought process was intact. He was a little less negative and his mood was a just a tad low; his affect was at times bright. There was no evidence of psychosis and he was alert and oriented in all spheres. May 2013 VA treatment notes reveal that the Veteran reported that he had not attended any recent VFW meetings because he explained that it was out of his comfort zone; he indicated that he preferred to stay by himself. He reported sleeping without any recent nightmares. He reported no irritability because he stated he was rarely around others. His daughter had a new job and that made him feel good. He presented clean and casually dressed; he was pleasant, polite, and cooperative. His thought process was intact. His mood was level with appropriate affect. There was no evidence of suicidal ideation and no evidence of psychosis. He was alert and oriented in all four spheres. VA treatment notes from July 2013 reveal that the Veteran reported doing well and attending a neighbor’s event with his wife and daughter; he further reported that he enjoyed the event a little. He reported sleeping six hours most nights, with only occasional nightmares and night sweats. The Veteran reported less irritability. The examiner noted that the Veteran’s PTSD was in fair control and that his dysthymia seemed improved. In January 2014, the Veteran reported that he continued to do fairly well. He noted that his dog of 12 years passed away in December and this saddened him. The Veteran further reported that he was generally sleeping well. He indicated some problems with fireworks over the holidays. He stated that he has been controlling his anger and that he is not too irritable. He expressed that he was looking forward to getting back with the VA group that was suspended over the holidays. He presented clean and casually dressed; he was pleasant, polite, and cooperative. His thought process was intact. His mood remained level with appropriate affect. There was no suicidal ideation and no evidence of psychosis. The Veteran was alert and oriented to all four spheres. In September 2014, the VA examiner noted that the Veteran presented in a very good mood and reported that he was feeling a little better. The Veteran further reported that he had been exercising more and had since lost some weight. He indicated that he had been sleeping OK with not too many nightmares or night sweats. The Veteran stated that he had not been too irritable, although he admitted that he still had some anger issues. He denied any crying spells or suicidal ideation. He presented clean and casually dressed; he was pleasant, polite, and cooperative. He was chatty at this encounter with his though process intact. His mood appeared level with very bright affect. There was no suicidal ideation. There was no evidence of psychosis. He was alert and oriented in all four spheres. In June 2014, the Veteran reported that he was doing alright. He indicated that the holidays were quiet, which he spent with his wife and daughter. He stated that the fireworks were a challenge because they reminded him of the bombs he used to shoot. Also, the recent rains reminded him of Vietnam. He reported that he got a new dog and that he had built the dog a beautiful house and area of his own. He reported being a bit more irritable and impatient recently. He expressed frustration with delays in his medical care that was unrelated to his psychiatric treatment. He reported that he enjoyed doting on his dog, but he seemed less active of late. He was no longer riding his bike and he has gained some weight. He expressed irritation with the kids in his neighborhood riding four wheelers and with a tire installer keeping him waiting past his appointment time. He presented clean and appropriately dressed; he was pleasant, polite, and cooperative. The Veteran was chatty as usual with his thought process intact. His mood was a bit irritable in recounting the frustrations he described during the encounter. There was no evidence of suicidal ideation or psychosis. He was alert and oriented in all four spheres. In September 2015, Veteran reported that he was still irritated with the neighborhood kids riding four wheelers. Otherwise, the Veteran stated that he was content. He reported that he slept well most nights, with occasional nightmares, but not too often. There were no reports of crying spells or suicidal ideation. He presented clean and casually dressed; he was pleasant, polite, and cooperative. His mood was less irritable in recounting incidents. The Veteran acknowledged that he might be a bit more intolerant as he ages. There was no evidence of psychosis or suicidal ideation, and the Veteran was alert and oriented in all four spheres In December 2015, the Veteran reported that he continued doing “pretty good.” He indicated that his daughter visited him on Thanksgiving and that it was OK. He did not report any plans for Christmas. He stated that on holidays his thoughts go back to Vietnam and what he was doing on those special days. He reported that he continued sleeping fairly well. There was still some irritability, but there were no crying spells or suicidal ideation. He reported that he played golf on occasion. He presented clean and casually dressed; he was pleasant, polite, and cooperative. He was chatty as usual with his thought process intact. His mood was less irritable and there was no evidence of suicidal ideation or psychosis. He was alert and oriented in all four spheres. In May 2016, the Veteran reported that he recently lost his dog due to an accident with a school bus. Veteran indicated that he did not like loud noises, such as fireworks. He reported that he had been sleeping well. The examiner noted that there was no history of current psychotic or manic symptoms. The Veteran was not majorly depressed, but he did appear sad about the loss of his dog. He presented alert and became more animated and able to smile appropriately. He was neatly groomed and dressed. He was alert and oriented in all four spheres. His thought process was logical, although the examiner noted that he tended to perseverate about his dog and noises in his neighborhood. However, there was no evidence of delusions and his memory was grossly intact. His PTSD symptoms were stable, and his grief was a reaction to losing his pet. In support of his claim, the Veteran submitted a November 2020 buddy statement from W.R.P., a deacon at the Veteran’s church. W.R.P. indicated that he has known the Veteran for the past 17 years as an organist leading the church’s gospel choir. Further, W.R.P. indicated that he had observed the Veteran make necessary adjustments to his behavior to maintain a peaceful situation. W.R.P. also related that he had not found the Veteran to exhibit difficulty concentrating, nor had W.R.P. seen visible signs of impaired memory. Additionally, W.R.P. remarked that he was aware that the Veteran showed signs of social avoidance; however, W.R.P. observed that the Veteran liked being a very private person. Finally, W.R.P. concluded that he believed the Veteran’s time as an organist and choir director had a positive impact on the Veteran. In January 2021, the Veteran submitted a private opinion in support of his claim. After a review of the record, the private examiner concluded that the Veteran had severe and pervasive symptoms insidiously escalating throughout his post service life, until they became overwhelming by 2006, leading to his retirement and steady deterioration, and ultimately led to him being totally disabled and unemployable since that time. The private examiner found that the Veteran had manifested the full constellation of PTSD symptomatology within six to twelve months after his active duty service, though his symptoms did not reach fruition until decades later. Specifically, the private examiner explained that after discharge from active service, the Veteran had unfettered mental illness and when the Veteran presented for mental health treatment, he was not responsive to pharmacologic management or psychotherapy. Further, the private examiner determined that since the Veteran’s civilian career retirement, he experienced a steady increase in his inability to appropriately or meaningfully interact with other people on a consistent and predictable basis. With respect to the conflicting medical opinions of record, the Board has the responsibility to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id.; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board finds the January 2021 private opinion is of less persuasive value. In this regard, the private examiner provided an opinion on the severity of the Veteran’s PTSD from 2006 going forward that is not with consistent the medical evidence collected during that period, including the Veteran’s own reports. Specifically, the private examiner alleges that the Veteran was not receptive to psychotherapy, when VA treatment records indicate that the Veteran himself noted improvement after participating in VA’s PTSD group program, and even indicated that he enjoyed attending. An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Further, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In comparison, the multiple VA examiner assessments of the severity of the Veteran’s PTSD were based on reports from the Veteran that were contemporaneous to the encounters. Further, these assessments took into account the Veteran’s actual degree of impairment that was observable to the examiners at the time of the assessment. Moreover, as in this case, where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous....” Fenderson, 12 Vet. App. at 126. Therefore, the Board affords significant probative weight to these assessments and opinions. Based on the evidence discussed above, as well as a number of treatment records and lay statements generated throughout this stage of the appeal, the Board finds that an initial evaluation in excess of 50 percent is not warranted prior to December 15, 2016. During this period, the Veteran exhibited a number of symptoms, including irritability, sleep disturbances, isolative behavior, and avoidance. However, the Veteran’s PTSD does not result in serious symptoms with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. Specifically, the Veteran’s appearance and personal hygiene were consistently reported as appropriate. Further, the Veteran’s speech remained logical and relevant. Moreover, the Veteran’s memory did not have any deficiencies and his thought processes and speech patterns were consistently reported as within normal limits. Additionally, the Veteran’s spatial orientation was consistently intact in all spheres. It was also consistently reported that the Veteran did not have any delusions or hallucinations and the Veteran repeatedly denied any suicidal ideation. While nightmares were reported, the Veteran continually indicated that they were no more than occasional, and in some instances not at all. Throughout the record, the Veteran reported irritability, but only two instances of angry outbursts, for which he demonstrated appropriate remorse and indicated were resolved. Further, while the Veteran reported irritability with kids in his neighborhood multiple times, he also conceded that some of his irritability could be due to his advancing age. While the Veteran’s behavior reflects a clear preference for social avoidance, to include not attending VFW events, no examiner reported that his behavior was grossly inappropriate or that his thoughts and communications were grossly inappropriate. Although the Veteran reported some marital discord from time to time, at no time did the Veteran report any indications that his marriage was failing. Although the Veteran in September 2010 that he experienced an increase in marital conflicts and a decrease in marital satisfaction, VA treatment records from May 2011 reveal that the Veteran was able to develop strategies to resolve conflicts with his wife. Further, later in the record, the Veteran reported attending functions with his spouse and participating in holidays. Also, the Veteran demonstrated care and concern for his daughter’s changing employment status and related that she was also included in holiday activities. While the Veteran did not report many friendships, the Veteran demonstrated appropriate care and concern at the passing of three of his Vietnam friends. Even though the Veteran reported that he did not wish to attend VFW events, the Veteran reported that he golfed on occasion. Equally, the Veteran actively participated in and looked forward to his group therapy work through VA programs. In the buddy statement the Veteran submitted, it was reported that the Veteran had served as an organist for his church for the past 17 years and that he was the leader of the gospel choir. While it was reported that the Veteran had conflicts with other people in this role, it was also noted that the Veteran was able to adjust his behaviors appropriately to prevent escalation of the conflict. Thus, the Board concludes that the type and degree of symptoms demonstrated during the appeal period are of similar frequency and severity as those contemplated for a 50 percent disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Also, in his November 2012 VA Form 9, Appeal to Board of Veteran's Appeals, the Veteran argues that his GAF score of 45 shows serious mental problems and that a rating of greater than 50 percent is warranted considering this GAF score. A GAF score is one factor to be taken into consideration when evaluating a mental disorder and does not dictate the rating of a mental disorder. The record contains two GAF scores: 57 in November 2009 and 45 in November 2010. The score of 45 reflects the Veteran's worsening symptoms at the time it was assigned and the increase in symptoms at that time was contemplated by the increase in the Veteran's disability rating from 30 percent to 50 percent. The 50 percent disability rating adequately accommodates the Veteran's symptoms. As noted above, a GAF score of 41 to 50 is assigned where there are "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). The record does not reflect the Veteran's symptoms continued at this level. As discussed above, the record does not reflect suicidal ideation, severe obsessional rituals, or frequent shoplifting. While these are only examples of symptoms, the record does not reflect any other symptoms of this level of seriousness. The Board is cognizant that the Veteran is competent to attest to things he experiences through his senses, such as anxiety, anger, flashbacks, disturbing memories, panic attacks, hypervigilance, and depressed mood. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The statements from the Veteran are competent evidence to report his increased psychiatric symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469, 470 (1994). The Veteran is also credible in his belief that he is entitled to an initial evaluation in excess of 50 percent. However, the more probative evidence of record does not indicate that the assignment of an initial evaluation in excess of 50 percent is warranted. In so finding, the Board notes that it weighed the lay and medical evidence and finds more probative opinions rendered by VA medical professionals given their expertise in evaluating psychiatric disorders. Based on the foregoing discussion, evidence of record showed no distinct periods of time during the appeal period when the Veteran’s service-connected PTSD varied to such an extent that a rating greater or less than the 50 percent rating currently assigned would be warranted for the period prior to December 15, 2016. Hart v. Mansfield, 21 Vet. App. 505 (2007). Overall, the Board concludes that the evidence discussed above, as well as all other evidence of record not specifically addressed including VA treatment records and lay evidence, supports no more than a 50 percent schedular evaluation at any point for the period prior to December 15, 2016. Accordingly, the Board finds the preponderance of the evidence is against an initial evaluation greater than 50 percent for the period prior to December 15, 2016, and the appeal must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement an evaluation in excess of 70 percent for PTSD with MDD from December 15, 2016. The claimant or the claimant’s representative may withdraw an appeal as to any or all issues on appeal. 38 C.F.R. § 19.55. Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. 38 C.F.R. § 19.55 (b)(1). A withdrawal is effective when received provided that receipt is prior to the issuance of a decision by the Board. 38 C.F.R. § 19.55 (b)(3). Withdrawal of a claim constitutes a withdrawal of the notice of disagreement and, if filed, the substantive appeal. 38 C.F.R. § 19.55 (c). In the present case, in a January 2021 correspondence from the Veteran’s authorized representative, the Veteran has withdrawn his appeal for an evaluation in excess of 70 percent for PTSD with MDD from December 15, 2016, and, hence, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Having met the requirements of 38 C.F.R. § 19.55, the Veteran has withdrawn his substantive appeal with respect to the above referenced issues. Accordingly, the Board does not have jurisdiction to decide the appeal for these benefits and the appeal as to this issue is dismissed. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 15, 2016 As an initial matter, the Board observes that in May 2011, the Veteran filed a VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (TDIU). This claim was adjudicated by the RO in August 2011. This decision was not appealed; however, the Veteran has continued to assert that he is unemployable as a result of his service-connected PTSD with MDD. The Court has held that a claim for TDIU is part of an increased rating claim when such is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of Rice, the issue of entitlement to TDIU has been raised by the record and is within the jurisdiction of the Board. The Veteran contends that, due to his service-connected disabilities, he has been unemployable since 2004, and therefore, he is entitled to an effective date prior to December 15, 2016 for a TDIU. Records show that the Veteran last worked full time in 2004. He reported completing four years of high school and occupational experience in welding. Additionally, at the time of the application, the Veteran reported that since 2000 he had worked part-time in his church’s music department. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, or if there are two or more 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. See 38 C.F.R. § 4.16 (a). The Court has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The medical evidence addressing the functional effects of a veteran’s disability on his ability to perform the mental and/or physical acts required for substantially gainful employment is relevant to the unemployability determination. See 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is service-connected for PTSD, rated at 30 percent from August 12, 2009, 50 percent from August 19, 2010, and 70 percent from December 15, 2016. As this is the Veteran’s only service-connected disability, he does not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a) prior to December 15, 2016. As such, the Board will consider whether referral for extraschedular consideration under 38 C.F.R. § 4.16 (b) is warranted for this time period. As noted earlier, entitlement to TDIU was previously established effective December 15, 2016. Where the schedular percentage requirements are not met, entitlement to TDIU benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities; consideration is given to the Veteran’s background including his employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The Board has considered whether the Veteran’s disability picture prior to December 15, 2016, warrants referral for consideration of an extraschedular evaluation for TDIU. However, the Board finds that a remand for referral of the Veteran’s claim for consideration of TDIU prior to December 15, 2016, is not warranted in this case. In his May 2011 VA 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran indicated that his PTSD prevents him from securing or following any substantially gainful employment. He reported he left his last job because of his disability and that he worked four hours per week at a church from January 2000 and was still working there at the time the application was filed. Indeed, although the Veteran reported he left his prior job as a welder because of PTSD, the record reflects that at the time of the November 2009 VA examination, the Veteran reported that he retired because he was eligible by age or duration of work. Further, the examiner noted that the Veteran’s symptom of irritability affected his marriage and that the Veteran had problems in the past at his job because of his irritability. Nevertheless, the examiner found that the Veteran had been mildly impaired by his PTSD symptoms in personal and social functioning. Overall, the examiner maintained that the Veteran’s PTSD symptoms, although chronic and unlikely to significantly improve, were mild and that the Veteran was able to maintain relationships and to participate in activities the Veteran enjoyed. Next, in September 2010, the Veteran reported he took a medical retirement in 2006 after working for 33 years as a welder. He reported his trauma symptoms and depression made it difficult to function at the workplace. He reported his concentration problems, avoidance, and irritability played a major role in his retirement and he would experience great difficulty working at the current time because of his PTSD and secondary depression. The examiner noted that the Veteran’s PTSD symptoms had increased since his last VA examination. In particular, the examiner remarked that the Veteran showed significant interpersonal and occupational role deficits as a result of his PTSD symptoms. Consequently, the examiner found that the Veteran’s PTSD symptoms compromised his ability to work and made work highly problematic. However, in June 2011 VA examination, the examiner noted that VA treatment records showed a sustained decrease in symptoms and related impairment since the September 2010 VA examination. Consequently, the examiner determined that the Veteran’s level of symptoms and impairment were in the mild range. Therefore, the examiner concluded that the Veteran’s service-connected mental disorder was less likely than not to render the Veteran unable to secure and maintain substantially gainful employment. Rather, the examiner found that the Veteran may be able to perform adequately in loosely supervised position requiring little interaction with the public. Finally, the examiner found that the Veteran’s present service-connected mental disorder was at least as likely as not to result in a reduction in reliability and productivity in the occupation domain. As discussed in detail above, all of the Veteran’s VA treatment records from this period reflect the Veteran was clean and casually dressed, pleasant, polite, cooperative, had an intact thought process, no psychosis, and was alert and oriented in all spheres. Further, the January 2021 buddy statement from W.R.P. related that the Veteran has been capable of behavioral adjustments in a worklike setting. Moreover, W.R.P., specifically noted that the Veteran did not show any indications of difficulty in concentration or any visible signs of impaired memory. In January 2021, the Veteran submitted a private medical opinion in support of his claim. The private examiner determined that since 2006, the Veteran had manifested severe psychiatric disease, leaving him severely and pervasively mentally ill. Further, the Veteran had since lost the capacity to engage in a modern workplace, manifesting nonexistent task completion, poor focus and concentration, altered memory, and volatile interpersonal interactions. He was not able to take instructions from others without excessive anger, was not able to interact appropriately in a work environment without anger and thoughts of violence and created an unsafe and unreasonable work environment. Ultimately, the private examiner found that no modern occupational setting is willing to accept an individual with these symptoms who is incapable of successfully leaving his home due to fear and panic. Therefore, the private examiner opined that since his active military service, the Veteran has been rendered completely disabled and totally unemployable. In light of the above, the Board finds that the cumulative effects of the Veteran’s service-connected PTSD did not render him unable to secure or follow a substantially gainful occupation for the period prior to December 15, 2016. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). The Board finds that the January 2021 private opinion provided by the Veteran is of little probative value in determining the severity of the Veteran’s service-connected disabilities prior to December 15, 2016. In this regard, the private examiner reported that the Veteran could not participate in gainful employment since 2006 despite the evidence that he worked part time at his church and lead the church’s gospel choir. While this work was only part time, it is not shown that there was any particular accomodation from the employer for the Veteran’s PTSD. Equally, the in the January 2021 buddy statement from a member of the Veteran’s church, it was specifically stated that the Veteran did not exhibit any signs of difficulty concentrating, nor did the Veteran demonstrate any visible signs of impaired memory while the Veteran worked in this capacity. While the January 2021 private examiner found that the Veteran had an incapacitating fear of leaving his house, this is not reflected anywhere else in the record. Further, overwhelmingly the medical evidence relied on by the private examiner found that the Veteran’s PTSD symptoms were mild, which determinations were made contemporaneous to the period under appeal. As such the Board finds this opinion to be inadequate because it is speculative and conclusory in nature. In comparison, the VA examinations of record considered the Veteran’s symptoms at the time the examinations were performed for the period prior to December 15, 2016. Specifically, none of the VA examination reports of record determined that any of the Veteran’s service-connected PTSD prevented the Veteran from working or obtaining or maintaining substantially gainful employment. Even though the September 2010 VA examiner found that the Veteran would have occupational deficits because of his PTSD, the examiner did not indicate that the Veteran was precluded from any type of employment. Especially considering that at the time of the examination the Veteran was employed part-time by his church, in which employment the Veteran demonstrated the ability to function in a worklike setting. Therefore, the Board affords significant probative weight to these opinions. Moreover, the Board additionally finds the VA treatment records to be more persuasive than the statements made by the Veteran including on his TDIU applications and during VA examinations because statements recorded in VA treatment records were made in furtherance of medical treatment, in contrast to statements made to VA examiners for purposes of obtaining disability benefits. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant’s testimony); Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable); See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (“[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board’s reasons.”)). Courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker, 10 Vet. App. at 73. Thus, the Board finds that the evidence of record does not support the grant of TDIU, prior to December 15, 2016. Notably, the competent medical evidence does not support a conclusion that the Veteran’s service-connected PTSD alone precluded him from obtaining or maintaining gainful employment during this period. Importantly, the VA examinations of June 2009 and June 2011 describe the level of the Veteran’s impairment due to PTSD as mild. This seems confirmed by the evidence on file from earlier in the appeal period, prior to December 15, 2016. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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. ICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.