Citation Nr: 21013436 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-38 493 DATE: March 9, 2021 ORDER Entitlement to an effective date earlier than July 3, 2003 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. An initial disability rating of 70 percent for service-connected PTSD is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to service connection for depressive disorder is remanded. FINDINGS OF FACT 1. The earliest communication from the Veteran that can be construed as a claim for service connection for PTSD was not received until July 3, 2003, the current effective date for the grant of service connection for PTSD. 2. In the April 2008 decision, the Board determined that because the standard for evaluating PTSD differs from that for other psychiatric disorders, the PTSD issue should be separated from the other psychiatric claims. 3. The Veteran’s service-connected PTSD is manifested by occupational and social impairment with deficiencies in most areas, but not by total occupational and social impairment. 4. Throughout the appeal period, the Veteran’s service-connected PTSD has precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than July 3, 2003, for the grant of service connection for PTSD, are not met. 38 U.S.C. §§ 5103, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.156(c), 3.159, 3.304(f) 3.400. 2. The criteria for the assignment of an initial disability rating of 70 percent, but no higher, for the service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411. 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to January 1972. This case is before the Board of Veterans’ Appeals (Board) on appeal from September 2015 and March 2016 Regional Office (RO) rating decisions. In April 2008, the Board characterized the appeal as a petition to reopen a claim for service connection for an anxiety disorder, remanded the appeal for additional development, and referred a separate claim of entitlement to service connection for PTSD. In May 2009, the Board adjudicated a petition to reopen a claim for service connection for an anxiety disorder, entitlement to service connection for PTSD, and entitlement to service connection for a psychotic disorder. The Board denied the petition to reopen, denied service connection for PTSD, and remanded service connection for a psychotic disorder. In July 2010, the Board denied service connection for a psychotic disorder and remanded a claim of entitlement to service connection for a depressive disorder. In an August 2011 Memorandum Decision, the United States Court of Appeals for Veterans Claims (Court) vacated the portion of the Board’s May 2009 decision that denied service connection for PTSD and affirmed the remainder of the decision. In October 2011, the Board remanded the claim of entitlement to service connection for a depressive disorder. In April 2014, the Board granted the claim of entitlement to service connection for PTSD and remanded the claim for depressive disorder for further development and issuance of a supplemental statement of the case (SSOC). In the September 2015 rating decision, the RO effectuated the grant of service connection for PTSD, also claimed as major depressive disorder, providing a 50 percent disability rating, effective July 3, 2003. In the March 2016 rating decision, the RO denied the Veteran’s claim of entitlement to a TDIU. Earlier Effective Date Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim; a claim reopened after final disallowance; or a claim for increase, will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The term “claim” or “application” means 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). Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication “shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). The effective date of an award of compensation based on a claim that is reconsidered based all or in part on the receipt of relevant official service department records will be the date VA received the previously decided claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.156(c)(3). Prior to March 24, 2015, a “claim” was defined as “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) (2014). An informal claim included “[a]ny communication or action, indicating an intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a). Claims filed on or after March 24, 2015, must be submitted on the application form prescribed by the Secretary. 38 C.F.R. § 3.1 (p). If VA receives a complete application form prescribed by the Secretary (as defined in 38 C.F.R. § 3.160(a)) appropriate to the benefit sought within one year of the receipt of an intent to file a claim, VA will consider the claim to have been filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b)(1). Regulations defining a “claim” were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. Also, if new and material evidence is received during an applicable appellate period following a RO decision, the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Paragraph(c)(1), however, does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). An award made based all or in part on such records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3). A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. 38 C.F.R. § 3.156(c)(4). When newly acquired relevant service department records are associated with a claims file, the earlier effective date provisions under 38 C.F.R. § 3.156(c)(3) and § 3.156(c)(4) need only be considered after VA grants benefits following reconsideration on the merits under § 3.156(c)(1). 1. Entitlement to an effective date earlier than July 3, 2003 for the grant of service connection for PTSD, also claimed as major depressive disorder The Veteran is seeking entitlement to an effective date earlier than July 3, 2003 for the grant of service connection for PTSD. In a December 2015 NOD and the July 2016 VA Form 9, the Veteran stated that he should be assigned an effective date of January 4, 1972, the day after his discharge from service, as his original claim for benefits was received by VA within one year of his separation from service. First, the Board acknowledges that additional service personnel records were associated with the Veteran’s claims file subsequent to a January 1973 rating decision. However, in this case, the newly-associated service personnel records are not relevant to the issue at hand. As discussed in the May 2009 Board decision, at the time of that decision, the claim of entitlement to PTSD had not yet been subject to a final decision, and because no prior final decision existed, the Board need not consider the question of reopening that claim. Accordingly, reconsideration of the Veteran’s claim under 38 C.F.R. § 3.156(c) is not required based upon the newly-received service personnel records. Upon review of the record, the Board finds that an effective date earlier than July 3, 2003, for the award of service connection for PTSD, is not warranted. The initial question concerns the date of claim that may be recognized for purposes of assigning an effective date. After review, although the Veteran filed an earlier claim in December 1972 for a nervous condition, the current effective date, July 3, 2003, is the earliest date that can be recognized for the claim of entitlement to service connection for PTSD. Specifically, the Veteran initially filed a claim for service connection for a nervous condition in December 1972, which was denied in a January 1973 rating decision. The Veteran did not perfect an appeal or submit new and material evidence within one year of that decision, and the January 1973 rating decision became final. See 38 U.S.C. § 7104; 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103. On July 3, 2003, the Veteran filed a claim for service connection for nervous problems. In April 2008, the Board noted that the Veteran’s request to reopen a previously denied psychiatric claim had at times been characterized as a claim of entitlement to service connection for PTSD. The Board noted that while the RO had treated that issue as a component of the previously denied claim, since the standard for evaluating PTSD differs from that for other psychiatric disorders, the PTSD issue should be separated out and adjudicated on the merits. In other words, the Board determined that the claim for PTSD was separate from the Veteran’s previously claimed psychiatric condition, and the first indication of a claim for PTSD was on July 3, 2003. Prior to that date, there is no claim of record specifying PTSD nor any communication that could be construed as a claim for PTSD. While service personnel records were received after the original claim of entitlement to service connection for a nervous condition, those records were received prior to the April 2014 decision granting service connection for PTSD, as the Board clearly pointed to the service personnel records in that Board decision. Those personnel records do not pertain to a diagnosis of PTSD, rather they were used to corroborate in-service stressors for the Veteran’s PTSD. Currently, the effective date for the grant of service connection for PTSD is July 3, 2003, the date the Veteran filed his claim. Thus, an earlier effective date is not assignable pursuant to § 3.156(c). The next question for the Board concerns when entitlement to service connection for PTSD arose. The record does not provide a diagnosis of PTSD prior to the date of the claim, rather, the record shows a diagnosis of PTSD in private treatment records received in February 2004. Therefore, by definition, entitlement to benefits did not exist before the July 3, 2003 claim and the 2004 diagnosis of PTSD. Even assuming, arguendo, that the Veteran’s claim for PTSD was reconsidered based on the service personnel records, that claim would fail pursuant to 3.156(c)(4) because the record does not show a diagnosis for PTSD until private treatment records received in February 2004. The Veteran first filed his claim for PTSD on July 3, 2003. Thus, even if the Veteran’s PTSD symptoms were first manifested years earlier, the Board is precluded by statute and regulation from assigning an effective date prior to July 3, 2003 for the grant of service connection for PTSD. While the Veteran argues that the original claim for a nervous condition filed in January 1972 should be reconsidered based on service records not of record at the time of the January 1973 rating decision, that issue is not before the Board, as it is separate from PTSD, and it essentially amounts to a freestanding earlier effective date claim, which is impermissible. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Prior to July 3, 2003, there is no indication in the record that the Veteran filed a claim for PTSD, or that he or anyone else at the time was aware that he may have had or would eventually receive a diagnosis of PTSD. In light of the foregoing, the Board is unable to assign an effective date earlier than July 3, 2003, for the award of service connection for PTSD. The law requires that the effective date for an original claim, or a claim to reopen after final disallowance, is the date of claim (or reopened claim) or the date entitlement arose, whichever is later. As the record shows that the earliest indication of a diagnosis of PTSD was in 2004, and the Veteran’s claim was filed on July 3, 2003, there is no legal basis to assign an effective date earlier than July 3, 2003. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Consequently, the appeal is denied. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of a disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). 2. Entitlement to an initial disability rating in excess of 50 percent for the service-connected PTSD The Veteran contends that his service-connected PTSD warrants a rating higher than currently assigned. The Veteran’s PTSD is currently assigned a 50 percent disability rating from July 3, 2003 under DC 9411. The criteria for rating PTSD are found at 38 C.F.R. § 4.130, DC 9411, under the General Rating Formula for Rating Mental Disorders. A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Other language in Vazquez-Claudio indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. 116. If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. The Veteran underwent a VA examination in December 2003 for mental disorders, providing Axis I diagnoses of anxiety disorder NOS and alcohol dependence, in sustained full remission. The report indicates that he was living with his wife and two of their children, and that in the last year he was experiencing feelings and symptoms including sadness, depression, irritable, loss of energy, insomnia, inability to feel pleasure in daily tasks, inability to concentrate, anxiety, and tension. The Veteran was well-developed, well-nourished, appropriately dressed, with adequate hygiene, cooperative, spontaneous, established eye contact, was alert, aware of interview situation, and was in contact with reality. His thought process was coherent and logical, and there was no evidence of psychomotor retardation, agitation, tics, tremors, abnormal involuntary movement, looseness of association, evidence of disorganized speech, delusions, hallucinations, phobias, obsessions, panic attacks, nor suicidal ideas. His mood was anxious, his affect was broad and appropriate, he was oriented in person, place, and time, memory was intact, abstraction capacity was normal, judgment was good, and insight was adequate. The examiner noted that his symptoms were moderately interfering with his employment and social functioning but that there was no evidence of inappropriate behavior, no impairment of thought process or communication, and he was able to maintain basic activities of daily living. In a February 2004 private medical record, the Veteran’s psychiatrist provided Axis I diagnoses of major depression recurrent with psychotic traits and PTSD. The Veteran was preoccupied, frightened, suffering from depression and insecurity in Vietnam, and he has had symptoms since service including forgetfulness, mostly house confined, bad thoughts, hysterical, emotional malaise, cries, ideas of reference, everything bothers him, nightmares, associates current with past events, and cannot watch movies about war. Upon mental examination, he was well-nourished, adequately dressed and clean, was non-threatening, answered questions in a normal tone and pitch of voice, had no tics, involuntary movements, marks, mannerisms, nor identifying scars. His facial expression was of deep preoccupation and sadness, flow of ideas was retarded or slow without spontaneity or elaboration, thought production was illogic and incoherent, thought content was characterized by flashbacks, visual and auditory hallucinations, insecurity, ambivalence, confusion, exaggerated startle responses, poor interpersonal relations and tolerance span, sadness, depression, ideas of reference, pessimism, anguish, emotional unsatisfaction, negativism, fearfulness, poor memory, sleeping disturbances, isolation tendencies, hysterical defenses, and anxiety. His affect was mostly appropriate, mood was sad/preoccupied, he was oriented to person, affected to place, and mostly poor regarding time, immediate and recent memory were poor, past was mostly poor, and remote was mostly preserved. He was attentive during the interview, but his concentration and judgment were poor, intellectual functions were slow/poor/distorted at times, and insight was noted as “he knows he is sick.” In records received from the Social Security Administration, the April 20, 2004 Disability Determination Program includes a psychiatric medical report indicating that the Veteran was forgetful, everything bothers him, does not leave his house, poor judgment and concentration, emotional disorder, ideas of reference, low self-esteem, insecurity, hysterical symptoms, bad thoughts come to his mind, worthlessness, many worries, anxiety, depression, flashbacks from service, confusion, poorly sociable, hysteria, incertitude, irritable, and cries. He cannot deal satisfactorily with the demands of daily life and has feelings of incompetence, despair, exhaustion, mistrust, likes to be alone, people bother him, and apathy. It notes that he was aggressive and demanding, had sleep problems, does not visit anybody, including family. His emotional condition causes family problems and his interpersonal relations are of a poor character. The examiner noted that the flow of ideas is slow, with lack of spontaneity and elaboration, production of thought is illogical and incoherent on occasions, and psychomotor activity is slow. It notes evidence of mental blocks and free associations on occasion but no evidence of partial intellectual mutism, and that thought content is characterized by multiple worries, anxieties, depression, flashbacks, auditory and visual hallucinations, poor interpersonal relations, tendency to isolate, incertitude, sadness, anguish, crying, aggressiveness, irritability, feelings of inferiority, worthlessness and inadequacy, lack of positivity, fatigue, lack of confidence, mental blocks, negativism, pessimism, ambivalence, problems sleeping, insecurity, negative thoughts, poor control of aggressive impulses, tolerance, memory, judgment, and concentration,. His affect was described as mostly superficial, and his state of mind was worried and sad; during the interview he was attentive and not distracted. In another April 2004 daily activities questionnaire, his wife stated that he used to be “an apparently normal person” and went to work. She stated that when the changes began, he began letting himself go and became aggressive, irritable, and depressed. She stated that when he takes his medication, he is calm and passive for periods of time but sleeps all night and spends all day drowsy. She stated that he goes to bed late, and if he does sleep, he is restless and complains of nightmares and bad thoughts. She stated that when he became ill, he started having problems sleeping, walks around the house, spends his time looking out the windows and spends all day irritated. She stated that he used to be self-sufficient, but now, she directs all of his activities or he will not bathe. She stated that he visits friends or relatives but that when anyone comes over, he tries to go to his room or is oblivious to the conversations. She stated that he used to be very sociable and attentive but now is not interested in anyone or attending social functions. It notes that he has problems with memory and delays in recalling information. In a May 2004 VA examination for PTSD, the examiner noted an Axis I diagnosis of anxiety disorder, NOS, with depressive features. The Veteran was not specific on describing his feelings, reported that he dislikes crowded places, does not sleep well, and cries on occasion. Examination revealed that he was clean, adequately dressed, groomed, alert and oriented, mood was anxious and somewhat depressed, affect was constricted, attention, concentration, and memory were fair, and selectively gives information, avoiding most details. His speech was clear and coherent, not hallucinating, suicidal, nor homicidal, insight and judgment were fair, and he exhibited good impulse control. VA treatment records received in October 2011 include a psychiatry admission evaluation note from July 25, 2006, with PTSD by history noted. His wife accompanied him and did most of the talking “because she remembers better.” The Veteran was alert and fully oriented to time, place, and person, memory and concentration were preserved, and insight and judgment were fair. He stated that he feels depressed most of the day for no identifiable reason, withdrawn, without interest in activities, sleeps most of the day and at night uses hypnotics, occasional death wishes but no history of parasuicidal behavior, no psychiatric hospitalization, difficulty with memory and concentration, hears “sounds, screams” at night. Upon mental status examination, the Veteran was ambulatory, calm, appropriate dressed and groomed, spontaneous vocal speech, regular mood, constricted affect, noting appropriate mood and affect, denied homicidal or suicidal thoughts, plans, or ideas, racing thoughts, delusional thoughts were not elicited, and he was coherent, relevant, and logical, does not have loose associations, flight of ideas, phobias, panic attacks, obsessions or compulsions, disorders of perception, visual or auditory hallucinations. VA treatment records received in August 2009 include a July 2009 psych examination showing that he experiences moderate sleeping difficulties even with treatment, early awakening since service, nightly, rated as a 6 out of 10, moderate daily restlessness, and mild to moderate sadness for the past several years. It indicates that his general appearance was clean, psychomotor activity was restless, speech was slow, attitude was cooperative, affect was appropriate, mood was depressed, attention was intact and good, and he was oriented. The Veteran’s thought process was noted as paucity of ideas, thought content was unremarkable, no delusions, judgment noted as understands outcome of behavior, of average intelligence, insight noted as understands that he has a problem, sleep impairment, no hallucinations or inappropriate behavior, no obsessive/ritualistic behavior, no panic attacks, no homicidal or suicidal thoughts, good impulse control, mildly impaired memory, episodes of violence, no problem with activities of daily living, and is able to maintain minimum personal hygiene. The examiner noted reduced reliability and productivity due to mental disorder symptoms, but no total occupational and social impairment, and stated that he presented with some social isolation that can limit social functioning and reduce reliability and productivity. In the August 2009 private psychiatric evaluation, the examiner noted an Axis I diagnosis of PTSD and stated that, since service, the Veteran remains mostly house confined without socializing, sometimes starts something but does not finish it. His social relations are poor, dislikes visiting and visitors, has no hobbies, sometimes he watches television, but many times is unable to remember what he saw, does not practice sports, occasionally listens to music, does not attend church. He stated that he dislikes crowds of people, thinks people are talking about him, dislikes traveling, and is somewhat fearful of the outside world. The examiner noted that the Veteran was properly dressed and clean, non-threatening, had a normal tone and pitch of voice, no tics, mannerisms, involuntary movements, marcs nor identifying scars. Thought production is illogic and incoherent sometimes; thought content and flow of ideas were slow with poor spontaneity and elaboration, characterized by flashbacks of service, negative psychosomatic symptoms, ambivalence, fearfulness, many preoccupations, poor control of his aggressive impulses, sense of a foreshortened future, negative thoughts, remains lonesome, dislikes people, irritability, inability to avoid and forget experiences from service, psychoneurotic symptoms, forgetful, sleeping problems, negativism, hysterical defenses, visual and auditory hallucinations, lack of positivism, exaggerated startle responses, anguish, emotional discomfort, poor judgment and concentration, pessimism, isolation tendencies, poor toleration, crying spells, and nightmares. The examiner noted that his psychomotor activity is slow sometimes and active other times, affect was appropriate, mood was preoccupied, mistrustful, and unpleasant, immediate and present memory were poor, past memory was fair, and remote memory was preserved mostly. The Veteran was oriented as to person, fair as to place, and mostly poor as to time, he remained attentive during the interview, concentration and judgment were poor, intellectual functions were slow, poor, distorted sometimes, and insight was that he knows he is sick. The examiner also noted the Veteran is easily bothered, stays home or secluded, poor socialization, associates recent events with service, cannot watch movies about war, and has been suffering from anxiety, confusion, tolerates poorly, ideas of reference, audio and visual hallucinations, recalls negative experiences, psychosomatic symptoms, sadness, sometimes feels threatened by death or a serious injury, inability to avoid thoughts, feelings, and activities from service, has a sense of a foreshortened future, many preoccupations, likes to be alone, mind goes blank, irritability, low self-esteem, and poor control of aggressive impulses. In the September 2010 VA examination report, the examiner noted that the Veteran lives with his wife and reported having a “good” relationship with his children. The Veteran reported that he likes to go out with friends or family but most of the time he stays home, likes to watch tv, comedies, go shopping with his wife, visits relatives, and sleep. It indicates no history of suicide attempts, violence or assault, and no evidence of psychosocial dysfunction. Examination revealed that he was appropriately, casually dressed, psychomotor activity was unremarkable, speech was spontaneous, clear, and coherent, he was relaxed, attentive, and manipulative, affect was normal, mood was happy, and attention was intact. The Veteran was oriented to person, time, place, with no delusions, unremarkable thought process and content, judgment described as understanding the outcome of his behavior, average intelligence, insight described as understanding he has a problem, no sleep impairment, hallucinations, inappropriate behavior, obsessive/ritualistic behavior, panic attacks, homicidal or suicidal thoughts, or episodes of violence. It indicates good impulse control, able to maintain minimum personal hygiene, no problems with activities of daily living, and memory was normal. The examiner noted no total occupational and social impairment, no reduced reliability and productivity, and no occasional decrease in work efficiency or intermittent inability to perform occupational tasks due to mental disorder. The examiner noted no mental disorder signs and symptoms that are transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. In a January 2014 letter, the Veteran’s wife stated that she has known the Veteran for 43 years and that prior to service he was happy, sociable, and had goals for his life but now has reminders of service. She stated that they used to socialize with friends and visit with each other’s families, and that due to family and financial circumstances, he left high school before graduation and enlisted in the Army. She stated that while he was in service, he wrote to her about his agonies and suffering. She stated that when he returned from service, he was never the same. Upon return, he was aggressive, rumbling noises would unhinge him, causing them to leave movie theaters, and was addicted to marijuana and other substances, which he began using during service. He eventually completed high school and began to study at the university, but that he would begin programs and quit them, until he decided to quit altogether. She stated that for years he verbally and physically abused her, she would withdraw from him and he would seek her out, crying and promising that he would not do it again. He continued being aggressive, abusing and hitting her, with the slightest provocation; he stopped doing drugs but became an alcoholic. She stated that his job as a croupier was not the best environment for his emotional state, and that while he was working, there was a lot of instability, with him frequently quitting jobs because of his outbursts and problems with supervisors and colleagues, changing jobs 5 or 6 times. She stated that he started to isolate himself, would not share with his family or participate in activities or special occasions with his children, started to hate going to work, skipping work and did not take care of himself. She stated that he would spend hours alone and found him crying many times; eventually becoming completely withdrawn, would not leave their house, kept the television on and would stare at the ceiling. She stated that when his family came to visit, he would greet them, at her insistence, and then return to his room. In a January 2014 letter, the Veteran’s youngest brother stated that before the Veteran left for service, he was his role model, studying, working, helping neighbors anytime he was available, and greatly respected their father. He was always with the Veteran and nothing bothered him; he was always happy, had good friendships, and the neighbors loved him. When the Veteran returned from service, they began seeing changes in his behavior; coming home late, drunk, under the influence of “some substance,” talking back to their father, spending all of his money on cars, which he would crash time and again. He stated that the Veteran started university but never finished. He stated it has been years of suffering for the family and the Veteran, and neighbors were astonished by the changes. He stated that the Veteran confided in him that he regretted some of his actions but would repeat them later. He stated that when they go to his house, he does not spend time with them, looking sad and distressed. In a February 2014 private medical opinion, the private psychologist noted that the record shows that he suffers from both recurrent, major depressive disorder, with psychotic features, and PTSD. She stated that the VA examiners’ conclusions are inconsistent with those of the Veteran’s long-time private psychiatrist, as well as with the disability determinations. She noted that, consistent with the November 2003 VA examiner’s conclusion, reports from 2004 demonstrate significant variability in his functioning. She stated that the May 2004 VA examination, while consistent with the November 2003 report is inconsistent with the Veteran’s private psychiatrist’s observations. She stated that the Veteran was not forthcoming with information but that the behavior, including lack of cooperation, was similar with both VA examiners, and likely best understood as a manifestation of his symptomatology. She stated that while the private psychiatrist’s January 2004 report may have contained inaccuracies, he remains the professional with the most knowledge of the Veteran and presumably the most supportive and collaborative relationship with him, thereby making his observations significant. She noted that private records show that the Veteran experienced symptoms in 2004, including flashbacks, nightmares, exaggerated startle response, irritability, avoidance of war movies, problems with concentration, and isolation from others, insomnia, poor impulse control, and hallucinations. She also noted that his psychotic symptoms can both eclipse his PTSD symptoms and hinder his ability to participate in a psychiatric interview about his PTSD. In an October 2015 letter, the Veteran’s wife stated that the Veteran returned from service, affected with addictions, alcohol, aggressive toward her and her family. She stated that around 2004, he began to seek help. The Veteran underwent a VA examination for PTSD in February 2016. The examiner noted a diagnosis of PTSD and stated that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner stated that the Veteran does not have more than one mental disorder diagnosed. He was living with his wife and one of his sons; family relations were described as good. The examiner noted symptoms including depressed mood, anxiety, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. He was observed to be alert, coherent, relevant, logical, appropriate, oriented, not suicidal nor homicidal, good judgment and insight, mildly depressed mood, affect congruent with mood, no indications of a perceptual or thought disorder, and seemed in good contact with reality. In a February 2016 Disability Benefits Questionnaire (DBQ) for PTSD, the private examiner noted diagnoses of recurrent, major depressive disorder, unspecified, and chronic PTSD. The examiner noted that it is possible to differentiate which symptoms are attributable to each diagnosis, noting symptoms of depression as sadness, insecurity, crying spells, insomnia, bad thoughts, blocking, decreased concentration and pleasure, and PTSD symptoms as referential, explosive, nightmares, avoidance, occasional exaggerated startle response, and does not watch war movies. The examiner marked that the Veteran had total occupational and social impairment, and that both diagnoses in conjunction provide the impairments of irritability and explosiveness, poor impulse control, fatigability, unable to complete a workday without interruption, avoids mess and people, poor relations and concentration. Everything bothers him, associates current events with the past, and is forgetful and negative, and his psychiatric symptoms produce difficulties in family relations and social relations. He has no desire, has poor tolerance, motivation, and impulse control, and projects symptoms upon family. He experiences isolation, detachment, diminished interest, anxiety, nightmares, and started treatment in 2000. The Veteran has persistent symptoms including difficulty sleeping, irritability, outbursts of anger, difficulty concentrating, exaggerated startle response, depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, circumstantial, circumlocutory, or stereotyped speech, impaired judgment and abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and adapting to stressful circumstances, inability to establish and maintain affective relationships, obsessional rituals which interfere with routine activities. VA treatment records show that the Veteran has denied suicidal or homicidal ideas. Resolving reasonable doubt in favor of the Veteran, a higher evaluation of 70 percent is warranted for the Veteran’s service-connected PTSD for the entire period on appeal. The competent medical evidence of record reveals that the Veteran has been consistently reporting depression, anxiety, hallucinations, aggression, impaired impulse control, exaggerated startle response, family problems, abusive behavior, sleep problems, problems with memory, judgment, and concentration, neglect of personal hygiene unless assisted by his wife, difficulty adapting to stressful circumstances, and inability to maintain effective relationships. While at certain points in time during the period on appeal, specifically in previous VA examination reports, it shows that the Veteran’s symptoms have waxed and waned throughout the appeal period; the overall disability picture when viewing the record as a whole, the Board finds that his symptoms have consistently manifested in the type and frequency more nearly approximating the criteria for the 70 percent disability rating as shown in private medical records. While the December 2003 and May 2004 VA examiners found that the Veteran has experienced symptoms of sadness, depression, trouble sleeping, and problems with concentration and anxiety, private medical examination reports also show reported hallucinations, impaired impulse control, abusive behavior, and neglect of personal hygiene. Throughout the record, the private medical records and examination reports, as well as multiple lay statements, consistently indicate that the Veteran has reported or shown symptoms consistent with the 70 percent disability rating as described above. It is reasonable to infer that the Veteran has a more open and honest relationship with his private psychologist, who has been treating him consistently for more than 15 years, than with a compensation and pension examiner who is not as familiar with the Veteran’s overall disability picture. Thus, the frequency and severity of symptoms noted in the private records are accorded high probative value, and those symptoms noted in the private examination reports have remained generally consistent throughout the appeal period. As the Board affords higher probative value to the private medical evidence, as discussed above, an evaluation of 70 percent is warranted when, as here, there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Based primarily on the private VA examination reports and multiple lay statements, the Board finds that the extent of the Veteran’s disability in conjunction with his reported symptoms more nearly approximates the criteria for the assignment of a 70 percent evaluation, but no higher. While the February 2016 private examiner marked that the Veteran’s PTSD resulted in total occupational and social impairment, this finding is inconsistent with the remainder of the competent evidence of record. The evidence indicates difficulties with work, judgment, thinking, and relationships, but it does not show total occupational or social impairment. The Veteran continues to live with his spouse and at least one of his children, and while it appears that he mostly keeps to himself, the evidence shows that the Veteran does have meaningful relationships with his family, albeit somewhat impaired. Furthermore, there is no indication that the Veteran is completely out of touch with reality, or that he is not competent to handle basic activities of daily living. Thus, the overall record does not show that during the period on appeal the Veteran’s PTSD has resulted in total occupational and social impairment. Accordingly, the assignment of a 70 percent disability rating, but no higher, for the service-connected PTSD during the period on appeal, is warranted. 38 C.F.R. §§ 4.7, 4.130, DC 9411. 3. Entitlement to a TDIU The Veteran contends that his service-connected PTSD prevents him from securing or following a substantially gainful occupation. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to the Veteran’s age or the impairment caused by any nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). For a schedular TDIU, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one service-connected disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The Veteran currently has one service-connected disability. Per this decision, the Veteran’s PTSD is now evaluated as 70 percent disabling from July 3, 2003. Thus, the Veteran meets the schedular percentage threshold requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a) as of July 3, 2003. In the December 2003 VA examination, the examiner noted that the Veteran’s signs and symptoms of his psychiatric condition moderately interfered with his employment and social functioning. In the February 2004 private medical record, it indicates that his last date of employment was April 2000 and that he was currently unemployed. After service he worked as a croupier in hotels but always suffered from his reported symptoms. In records received from the Social Security Administration, the April 20, 2004 Disability Determination Program indicates that in April 2000 the patient worked as croupier in casinos from 1976 to 2000. In the beginning he enjoyed his job but in the last years he could not stand it because of the noise of the people and that people made him sick. He stopped working due to bad thoughts about the people. In the April 2004 daily activities questionnaire, it indicates that the Veteran feels unable to return to work due to his severe depression. VA treatment records received in October 2011 include a psychiatry admission evaluation note from July 25, 2006 indicating that the Veteran is unemployed and receives Social Security for depression VA treatment records received in August 2009 include a July 2009 record showing that he had been unemployed for the past 5 to 10 years because of depression. The records indicate that he has been receiving Social Security benefits for depression since 2002. The Veteran reported that his unemployment is due to the effects of mental disorders, noting “depression” and that he “can’t deal with people.” The examiner stated that there is not total occupational and social impairment. In the September 2010 VA examination report, the Veteran reported that he has been incapacitated since 2000 and receives Social Security benefits due to depression. The examiner noted no total occupational and social impairment, no occasional decrease in work efficiency or intermittent inability to perform occupational tasks due to mental disorder, and no mental disorder signs and symptoms that are transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. In the January 2014 letter, the Veteran’s wife explained that after the Veteran took a croupier course, he worked for 20 years, but it was not the best environment for his emotional state. She stated that during his working years he frequently quit jobs due to his outbursts and problems with supervisors and colleagues. In a February 2014 private medical record, the private psychologist noted that, consistent with the November 2003 VA examiner’s conclusion, reports from 2004 demonstrate significant variability in the Veteran’s functioning. In the December 2015 TDIU application, the Veteran indicated that his PTSD prevents him from securing or following any substantially gainful occupation, and that he worked as a croupier at a hotel from December 1986 to April 2000. In a December 2015 NOD, the Veteran stated that his wife previously described his inability to engage in social activities and chronic employment problems due to the psychiatric symptoms he has suffered since service. He stated that in 2001, his private psychologist stated that he could not continue to work because of his psychiatric symptoms, and that the Social Security Administration (SSA) found him disabled due to his psychiatric disabilities since February 2, 2001. The Veteran underwent a VA examination for PTSD in February 2016, and the examiner noted occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner stated that his symptoms related to PTSD are not so severe as to preclude him from obtaining and maintaining gainful employment. In a February 2016 DBQ for PTSD, the private examiner marked that the Veteran had total occupational and social impairment, and that both diagnoses in conjunction provide the impairments of irritability and explosiveness, poor impulse control, fatigability, unable to complete a workday without interruption, avoids mess and people, poor relations and concentration, and everything bothers him. He noted symptoms including difficulty concentrating, impaired judgment and abstract thinking, and difficulty in establishing and maintaining effective work and social relationships and adapting to stressful circumstances. In a June 2018 statement, the Veteran’s attorney stated that the February 2016 VA examination should be afforded minimal weight because the examiner did not address whether he has any expertise in evaluating whether or not the Veteran’s symptoms prevent him from working, given his education and work history, and did not address numerous symptoms noted in the private examination. He stated that the VA examination stands in stark contrast to the opinion of the Veteran’s treating psychiatrist. The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2014); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). However, a medical examiner is responsible for providing a full description of the functional effects of disability upon a person’s ordinary activity and has done so here. See 38 C.F.R. § 4.10. The findings, comments and opinions of the VA examiners have appropriately been considered as pertinent evidence, along with the Veteran’s competent assertions, in determining whether he is able to perform the acts required for substantially gainful employment. In light of the competent medical evidence, VA and private medical opinions, lay statements, a few years of college but no degree, and lack of meaningful and gainful employment since April 2000, the Board finds that, considering the record as a whole, and resolving reasonable doubt in favor of the Veteran, the claim for a TDIU should be granted. Upon review of the evidence of record, the Board finds that a TDIU is warranted. The Veteran’s record indicates that he completed three years of college, has limited work experience, and is unable to sustain gainful employment due to symptoms of his service-connected PTSD. The Veteran’s statements are competent and credible and the Board notes that whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). Based on the foregoing, the overall evidence of record indicates that the Veteran is unable to maintain employment due to his service-connected PTSD. The probative evidence of record reasonably shows that the Veteran’s service-connected PTSD precludes him from securing or maintaining a substantially gainful occupation, considering his work history and education. Accordingly, the evidence is at least evenly balanced as to whether the Veteran is precluded from obtaining and maintaining substantially gainful employment in occupations related to his education, training, and work experience by his service-connected disability. The Board resolves reasonable doubt in favor of the Veteran and finds that the evidence shows that he is entitled to an award of a TDIU rating based on his service-connected disability. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Thus, the Veteran’s claim for entitlement to a TDIU is granted. REASONS FOR REMAND 1. Entitlement to service connection for depressive disorder As discussed above, in April 2008, the Board determined that the standard for evaluating PTSD differs from that for other psychiatric disorders, and therefore, the PTSD issue was separated from the Veteran’s claim for depressive disorder. In July 2010, the Board remanded the claim of entitlement to service connection for depressive disorder to obtain an addendum opinion for the July 2009 examination. In October 2011, the Board remanded the claim of entitlement to service connection for a depressive disorder in order to obtain all of the Veteran’s VA treatment records and readjudicate the claim. In April 2014, the Board remanded the claim of entitlement to service connection for depressive disorder for further development, to include obtaining a VA examination, updated treatment records, and to issue a supplemental statement of the case (SSOC). In the September 2015 rating decision, the RO effectuated the grant of service connection for PTSD, also claimed as major depressive disorder, providing a 50 percent disability rating, effective July 3, 2003. However, since the previous Board remand, the RO has not readjudicated the separate claim for depressive disorder or issued an SSOC as to this issue; instead, the RO combined the previously separated issues. A remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence is essential for a proper appellate decision”). Throughout the record, the Veteran has had multiple claims for psychiatric disorders, including PTSD, nervous condition, psychotic disorder, and depressive disorder, each of them treated separately. As the RO did not follow the Board’s previous April 2014 remand instructions regarding the Veteran’s claimed depressive disorder, including obtaining updated treatment records, scheduling a VA examination, and issuing an SSOC, a remand is warranted. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records related to the Veteran’s claim for depressive disorder and associate them with the record. If no outstanding records exist, this fact should be clearly documented for the record. 2. Ensure that the Veteran is scheduled for a VA examination to address the nature and etiology of his depressive disorder. The examiner must review the entire claims file in conjunction with the examination. (a.) The examiner must opine as to whether it is at least as likely as not that the Veteran’s claimed depressive disorder is caused by or related to active service. Although service connection for PTSD is currently in effect, as discussed above, in April 2008, the Board determined that the standard for evaluating PTSD differs from that for other psychiatric disorders, and therefore, the PTSD issue was separated from the Veteran’s claim for depressive disorder. (b.) The examiner must opine as to whether it is at least as likely as not that any identified disability was caused or aggravated by the Veteran’s service-connected PTSD. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (Continued on the next page)   3. Upon completion of the above development, the RO must review all evidence associated with the claims file and furnish the Veteran with a SSOC. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Labi, 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.