Citation Nr: 21023112 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-01 719 DATE: April 20, 2021 ORDER Entitlement to service connection for a left shoulder disability is denied. Entitlement to a disability rating in excess of 30 percent prior to January 14, 2014, and in excess of 50 percent thereafter, for a service-connected acquired psychiatric disorder, is denied. Entitlement to an effective date prior to January 14, 2014 for the award of a 50 percent rating for a service-connected acquired psychiatric disorder is denied. Entitlement to total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s left shoulder disability did not originate in service or until years thereafter and is not otherwise etiologically related to service. 2. For the period on appeal prior to January 14, 2014, the Veteran’s service-connected acquired psychiatric disorder was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behaviour, self-care, and conversation normal), but not by occupational and social impairment with reduced reliability and productivity. 3. For the period on appeal from January 14, 2014, the Veteran’s service-connected acquired psychiatric disorder was manifested by occupational and social impairment with reduced reliability and productivity, but not by occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. 4. Prior to January 14, 2014, there is no evidence of an increase in severity of the Veteran’s psychiatric symptoms. 5. The Veteran’s service-connected disabilities do not prevent him from obtaining or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309. 2. The criteria for a disability rating in excess of 30 percent prior to January 14, 2014, and in excess of 50 percent thereafter, for a service-connected acquired psychiatric disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Code 9413. 3. The criteria for an effective date prior to January 14, 2014 for the award of an increased 50 percent rating for a service-connected acquired psychiatric disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. 4. The criteria for the assignment of TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2003 to December 2003 and from July 2004 to May 2007. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was last remanded by the Board in September 2018 and again in November 2020 for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Service connection for a left shoulder disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Arthritis is a chronic disease and may qualify for this presumption. The Veteran contends while weightlifting he injured his left shoulder doing a “woodcutters” exercise and then re-injured his left shoulder a few days later doing pull-ups. A March 2003 report of medical examination noted that the Veteran had normal upper extremities and a contemporaneous March 2003 report of medical history noted that the Veteran denied a painful shoulder. A January 2007 service treatment record notes that the Veteran injured his left shoulder doing a “wood chopper exercise” and heard and felt a crunching sound. The record notes that the Veteran’s shoulder joints did not have full range of motion due to pain, and the Veteran was assessed to have tendonitis of the rotator cuff. A March 2007 report of medical history noted that the Veteran had a painful shoulder which he injured twice in one week during physical training while in the military. The Veteran reported that he still had pain when he lifted heavy objects. An April 2007 report of medical examination indicated that the Veteran’s upper extremities, spine, and other musculoskeletal evaluations were normal. A September 2008 VA treatment record notes that the Veteran reported chronic left shoulder pain that began during service and that his shoulder occasionally went out of place. The record notes that right shoulder testing was negative and that there were no signs of crepitus, erythema, nor edema. A December 2008 VA treatment record again notes the Veteran’s complaints of chronic left shoulder pain but states that x-rays did not reveal any abnormality. An August 2012 orthopedic surgery note contained in VA treatment records notes that the Veteran reported left shoulder popping and pain that began during service. The August 2012 record also noted x-rays were unremarkable and that the Veteran was advised to alter activities that caused discomfort. An April 2013 VA treatment record notes that the Veteran reported left shoulder pain since service and that his shoulder hurt with heavy labor actions. However, the record notes that the Veteran had good range of motion in his shoulder. The Veteran was afforded an in-person VA examination in August 2013. The August 2013 VA examiner’s report noted that the Veteran had a diagnosis of left shoulder strain in July 2013. The Veteran reported that he injured his left shoulder during service while lifting weights in the weight room and later re-injured his shoulder again during service while doing pull-ups. Imaging studies were available at the time of examination and did not show degenerative or traumatic arthritis. The VA examiner also determined that the Veteran’s left shoulder disability was less likely than not incurred in or caused by military service. The examiner explained that there was no objective evidence of any left shoulder problem in service or between 2007 and 2011. The examiner stated, “[t]here is no objective evidence of any left shoulder problem in any close proximity to service.” The examiner further determined that the Veteran’s left shoulder symptoms complained of several years post-service could not reasonably be connected to service because of other factors during intervening years such as aging, occupational use or impact, and daily activity. The examiner further discussed that the Veteran’s diagnosis was tendonitis which is generally a self-limited condition that resolves without long term sequelae. An October 2019 VA treatment record notes that imaging studies documented mild, age appropriate osteoarthritis in the left shoulder. A November 2019 VA treatment record notes the Veteran’s reports of left shoulder pain since service. VA issued a letter in June 2020 which determined that VA could not locate VA treatment records from May 1, 2007 to July 13, 2008. The Veteran was afforded an in-person VA examination for his left shoulder disability in December 2020. The December 2020 VA examiner noted that the Veteran had diagnoses of left shoulder strain diagnosed in July 2013 and left acromioclavicular joint osteoarthritis diagnosed in October 2019. During the VA examination the Veteran did not complain of pain in either shoulder. Rather, he stated, “I don’t do all the crazy physical stuff like I did when I was in my twenties, so my shoulder doesn’t hurt now.” The VA examiner noted that December 2008 and November 2011 radiographic studies of the left shoulder were silent for degenerative osteoarthritis of either the acromioclavicular or glenohumeral joints. However, the examiner noted that the VA treatment records were significant for diagnosis of and treatment for degenerative osteoarthritis in the left acromioclavicular joint beginning in October 2019. Current imaging studies were available but did not document degenerative or traumatic arthritis, nor any other abnormality of the left shoulder. The examiner noted that the Veteran did not have any functional loss or functional impairment of the joint or extremity being evaluated, and that range of motion was normal, and the Veteran retained 5/5 muscle strength. The examiner determined that the Veteran’s left shoulder disability did not result in functional or occupational impairment. The VA examiner concluded that the Veteran’s claimed left shoulder disability was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained, “[i]n the absence of any expected degenerative changes consistent with any significant previous injury to either the acromioclavicular joint or the glenohumeral joint, this examiner is forced to agree with the previous VA examiner’s medical opinion...that the original in-service injury (tendonitis) was most likely self-limited and resolved without residual, especially in light of the Veteran’s current lack of symptoms in either shoulder and normal physical examination today and consistent normal left radiographic studies.” As an initial matter, the Board acknowledges the VA letter issued in June 2020 which determined that VA could not locate VA treatment records from May 1, 2007 to July 13, 2008. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board’s analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The Board notes that during the period on appeal, diagnostic testing and imaging were consistently negative for any indication of a left shoulder disability until October 2019. See September 2008 VA treatment record, December 2008 VA treatment record, August 2013 VA examiner’s report, October 2019 VA treatment record, and December 2020 VA examiner’s report. While the August 2013 VA examiner’s report diagnosed left shoulder strain, this diagnosis appears to be based solely on the Veteran’s reports of left shoulder pain. The Board acknowledges that VA treatment records regularly documented the Veteran’s reports of left shoulder pain until as recent as November 2019. The Board also acknowledges that pain can be a disability if it causes functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (finding that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability”). Thus, pain alone is sufficient to establish the existence of a present disability if the pain reaches the level of a functional impairment of earning capacity. See id. However, in this case, there is no evidence of functional impairment of earning capacity. The Veteran’s left shoulder pain was only intermittent and did not require treatment. Post-service the Veteran retained full range of motion and strength in his left shoulder. See April 2013 VA treatment record and December 2020 VA examiner’s report. Moreover, the August 2013 and December 2020 VA examiners both determined that any left shoulder disability did not cause functional or occupational impairment. And, most importantly, the Veteran reported during his recent December 2020 VA examination that he no longer experienced pain since he did not engage in the same types of activities as he did in his 20s. Accordingly, while pain can be a disability, the Board finds that here, the Veteran’s pain alone did not constitute a left shoulder disability. The Board further finds that the missing VA treatment records from May 1, 2007 to July 13, 2008 would have no bearing on this decision since the missing records are for dates prior to the period on appeal and would not be able to prove a current disability during the appeal period. Accordingly, a left shoulder disability was not shown until October 2019 when the Veteran was diagnosed with osteoarthritis. See October 2019 VA treatment record. As previously mentioned, the first prong of a service connection claim is a current disability. The evidence does not demonstrate that the Veteran had a left shoulder disability until October 2019. Nonetheless, the Veteran has been shown to have a left shoulder disability during the period on appeal. The October 2019 VA treatment record is the first indication that the Veteran developed osteoarthritis in his shoulder. Presumptive service connection based on a chronic disability is not warranted since the Veteran was not shown to have any type of arthritis during service and the Veteran’s osteoarthritis did not manifest until October 2019, more than one year after separation from service. Although the Veteran regularly reported pain in his left shoulder after separation from service, pain is not a chronic disease for which presumptive service connection is available and the Veteran’s osteoarthritis was not noted until many years after separation from service. Accordingly, service connection on a presumptive basis is not warranted. See 38 C.F.R. §§ 3.307, 3.309. Moreover, both the August 2013 and the December 2020 VA examiners found against a nexus between the Veteran’s left shoulder disability and his active duty service. Initially, the Board notes that only some probative value is afforded to the August 2013 VA examiner’s report because the August 2013 VA examiner did not consider that some of the Veteran’s VA treatment records from 2007 and 2008 are missing. Nonetheless, the August 2013 VA examiner did consider objective evidence, including imaging studies that revealed a normal left shoulder. The VA examiner also explained that tendonitis, as diagnosed in service, was generally a self-limited condition that resolved without long term sequelae. The December 2020 VA examiner agreed that the Veteran’s diagnosis of tendonitis was most likely self-limited because no degenerative changes in the Veteran’s left shoulder had been documented as would have been expected consistent with any significant left shoulder disability. The Board emphasizes that the October 2019 VA treatment record that first noted osteoarthritis, noted that the osteoarthritis was mild and age appropriate further indicating that the Veteran’s osteoarthritis was not related to the in-service injury. The Board also emphasizes that the Veteran did not have any left shoulder symptoms during the December 2020 VA examination further supporting the finding that a prior injury may have resolved. There is simply no positive nexus opinion available to support the Veteran’s claim that his left shoulder disability was due to his active duty service. In sum, the record does not contain probative evidence sufficient to establish a medical nexus between the Veteran’s left shoulder disability and his military service. As the preponderance of the evidence is against the claim, service connection for a left shoulder disability must be denied. 2. Increased ratings for an acquired psychiatric disorder. The Veteran’s disability is evaluated under Diagnostic Code 9413, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as: depressed mood, anxiety, suspiciousness, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. Id. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). A. Prior to January 14, 2014. The Veteran filed acclaim for an increased rating for his anxiety disorder, rated as 30 percent disabling at the time, on March 5, 2012. He stated that he had anxiety in public places, was hypervigilant in public places, had anxiety attacks one to two times per month, and stayed home most of the time. A September 2011 VA treatment record noted that the Veteran experienced a severe level of loss of interest, detachment, and numbness. The record notes that the Veteran also experienced insomnia, rage, violence, poor concentration, hypervigilance, and exaggerated startle response. At a moderate level, the Veteran was noted as having memory loss, flashbacks, avoidance, panic attacks, nightmares, and intrusive thoughts. However, the record also noted that the Veteran had intact recent and remote memory. Depression and posttraumatic stress disorder (PTSD) screenings were both positive. A 2008 suicide attempt was noted, but the Veteran did not report any suicidal ideations or attempts in the post two weeks. At the time the Veteran was not receiving any treatment for his acquired psychiatric disability. An October 2011 VA treatment record notes that the Veteran complained of hypervigilance and poor sleep possibly due to sleep apnea. The Veteran’s ability to care for himself was noted as mildly impaired and the Veteran’s work and school performance was also noted as mildly impaired. Social stressors were described as mild to moderate. A November 2012 VA treatment record notes that the Veteran was participating in court ordered treatment for substance abuse because of an alcohol induced fight he had with his father-in-law due to an argument over car keys. The record further noted that the Veteran reported being depressed most days but denied suicidal or homicidal ideation. A January 2013 VA treatment record notes that the Veteran isolated himself from crowds and potential friends and that he had taken himself off his anxiety medications. A July 2013 VA treatment record notes that the Veteran did not have suicidal or homicidal thoughts. The record further states, “[h]e reports that his current medications have him feeling more stable over the last 6 months than he has felt in years.” The Veteran also stated that he wanted to look for work but was leery of “rocking the boat” because of trouble caused by his past impulsive behaviors. Another July 2013 VA treatment record notes that the Veteran had a desire to remain isolated in order to avoid any problems but that he would work on gradual exposure to reduce his avoidant behavior. The record again notes that the Veteran denied suicidal or homicidal thoughts. The Veteran was afforded a VA examination for his service-connected acquired psychiatric disability in July 2013. The VA examiner noted diagnoses of alcohol abuse and anxiety disorder. The report notes that the Veteran was unemployed and had legal problems due to alcohol abuse within the past year. The Veteran reported that he had been doing welding and mechanical work for his brother-in-law but that he was let go last December because the company lost its biggest contract. The Veteran reported that he was looking for a job but had been unsuccessful. The Veteran also reported that he was arrested toward the end of 2012 because of an alcohol induced fight he had with his father-in-law during a “flashback.” The July 2013 VA examiner determined that the Veteran’s psychiatric disability was manifested by 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. At the outset, the Board finds the Veteran’s January 2013 statement that his arrest was related to a “flashback” as documented in the January 2013 VA examiner’s report lacks credibility. The Board notes that the November 2012 VA treatment record documented the Veteran’s report that his arrest was related to the overconsumption of alcohol and an argument over car keys. Accordingly, the Board affords no probative value to the Veteran’s January 2013 report of a flashback that resulted in his arrest. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). For the period on appeal prior to January 13, 2014, the Board finds that the Veteran’s service-connected acquired psychiatric disability, was only manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behaviour, self-care, and conversation normal) due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Here, the record does not indicate that the Veteran had any of the symptoms listed in the criteria for a 50 percent rating. For this period, the Veteran had a single episode of impaired judgment that was due to overconsumption of alcohol. See November 2012 VA treatment record. In addition, the Veteran reported in February 2012 correspondence that he had panic attacks 1 to 2 times per month, not more than once per week as required for a higher, 50 percent rating. Instead, the Board finds that the Veteran’s panic attacks were only occasional as contemplated by the criteria for a 30 percent rating. The Board also notes that the September 2011 VA treatment record contains contradictory information regarding whether the Veteran experienced any memory loss. However, the Board finds that the preponderance of the evidence was silent as to any memory problems experienced by the Veteran. The Board finds that the notes regarding memory loss contained in the September 2011 VA treatment record are afforded low probative value because the same record noted that the Veteran had intact remote and recent memory. Although the Veteran exhibited many symptoms related to his acquired psychiatric disability, the symptoms resulted in only mild impairment in work, school, and the ability for the Veteran to care for himself. See October 2011 VA treatment record, July 2013 VA treatment record, and July 2013 VA examiner’s report. The Board further emphasizes that the July 2013 VA examiner determined that the Veteran’s symptoms were more analogous to the criteria for a 10 percent rating. Nonetheless, the Board finds that after review of the entire record the currently assigned 30 percent rating is most appropriate for this period on appeal. Accordingly, for the period prior to January 14, 2014, the Veteran’s claim for a rating in excess of 30 percent for a service-connected acquired psychiatric disorder is denied. B. From January 14, 2014. During the appeal, the Veteran’s disability rating was increased to 50 percent effective January 14, 2014. The Veteran submitted a disability benefits questionnaire (DBQ) in January 2014 that he had completed by a private provider. The private provider determined that the Veteran had a diagnosis of PTSD conforming to the DSM IV criteria. The private provider noted that the Veteran experienced depressed mood, anhedonia, and feelings of uselessness associated with the sequalae of PTSD and not being in the military any longer. The January 2014 private provider noted that symptoms including depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, impaired impulse control, such as unprovoked irritability with periods of violence, difficulty in adapting to stressful circumstances, including work or a work like setting, and inability to establish and maintain effective relationships. The private provider noted that the Veteran also consumed high levels of alcohol to cope with his emotions, was charged with driving under the influence, and experienced legal consequences for choking his father-in-law in a fit of rage. The private provider determined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. August 2014 and August 2015 VA treatment records note that the Veteran had three employment situations where others were very scared of him and he had to resign due to the different situations. However, the Veteran denied being a danger to himself or others. A February 2015 VA treatment record notes that the Veteran had made much progress but was still irritable, moody, and avoidant. The Veteran was afforded a VA examination in April 2015. The April 2015 VA examiner’s report noted that the Veteran was diagnosed with PTSD. During the examination, the Veteran showed good concentration, memory, and cooperation with no evidence of psychosis. His affect was anxious, but he denied suicidal or homicidal thoughts. The Veteran reported that he lived with his wife and her parents. He reported a good relationship with his wife and stated that his wife and his in-laws were his closest friends. He reported that he went grocery shopping with his wife, watched TV, read, and went to the gym. Otherwise, the Veteran tried to avoid people. The Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran reported that he attended a year of college but explained that he was unable to complete college due to his anxiety. The Veteran also reported significant difficulty concentrating in public places. The Veteran stated that he was unemployed and that he had been unable to secure certain jobs such as with the federal government due to a prior conviction for driving under the influence. The VA examiner determined that the Veteran’s psychiatric disability caused occupational and social impairment with reduced reliability and productivity. January 2016 and April 2016 VA treatment records note that the Veteran continued to endorse positive PTSD symptoms such as hypervigilance, heightened startle response, and avoidance of war related topics. Again, the Veteran denied being a danger to himself or others. A June 2016 VA treatment record notes that the Veteran was “much better off than he was” but that he continued to struggle with avoidance, irritability, hypervigilance, numbing, anger, sleep, and depression. A September 2016 VA treatment record notes that the Veteran had PTSD manifested by symptoms of forgetfulness, anxiety, poor concentration, and flashbacks. A September 2017 VA treatment record notes that the Veteran had PTSD manifested by symptoms of forgetfulness, poor short-term memory, anxiety, poor concentration, and flashbacks. A January 2018 VA treatment record notes that the Veteran’s psychiatric symptoms were stable but that the Veteran still had symptoms of avoidance, hypervigilance, and impaired social and occupational performance. A March 2020 VA treatment record notes that the Veteran had psychiatric symptoms including intrusive combat memories, hypervigilance, heightened startle response, night sweats, and feelings of numbness. The Veteran was afforded a VA examination via approved video telehealth for his service-connected acquired psychiatric disability in January 2021. The VA examiner noted that the Veteran had been diagnosed with PTSD as well as sleep apnea which was relevant to understanding or management of the Veteran’s PTSD. The Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, hypervigilance, avoidance behavior, irritability, exaggerated startle response, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. The Veteran denied suicidal or homicidal ideations. The Veteran reported during the examination that he was not close with family except his wife and sister. The Veteran also reported that he and his wife did yoga together prior to the pandemic, he and his wife did do it yourself (DIY) projects together, he went to the gym, and he read and watched television. The Veteran also reported that he recently obtained his license to work in security. He expressed a desire to work in armed security at a bank or courthouse. He also stated that the people who taught the security class offered him a job. The January 2021 VA examiner’s report again notes, however, that the Veteran last worked in 2013 as a bouncer and for a trailer company. The VA examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran’s service connected acquired psychiatric disability, to include PTSD, was 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 (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The Veteran did not exhibit symptoms contemplated by the criteria for a higher, 70 percent rating such as suicidal ideation; obsessional rituals; intermittently illogical, obscure, or irrelevant speech; near continuous panic or depression, spatial disorientation, or neglect of personal appearance and hygiene. At the outset, the Board notes that the Veteran has not expressed suicidal or homicidal ideations at any time during the period on appeal. While the January 2014 privately completed DBQ references the Veteran’s prior arrest for an assault on his father-in-law, the Board notes that the referenced assault was an isolated event that took place at the end of 2012 and was previously addressed herein. Although the evidence of record indicates that the Veteran struggled with establishing and maintaining effective work and social relationships, the Board finds that the Veteran did not exhibit a complete inability to do so as contemplated by the criteria for a higher, 70 percent rating. The Veteran regularly reported avoidance behaviour and difficulty maintaining effective relationships, however, he also regularly reported good relationships with his wife and his in-laws. See April 2015 and January 2021 VA examiner’s reports. Moreover, the Veteran even reported during his January 2021 VA examination that he could complete the required training for and obtaining a security license and maintained a good relationship with the instructors to the extent that they offered him a job. While the Veteran’s representative has argued that the Veteran is unemployable due to his service-connected acquired psychiatric disability, to include PTSD, and should be awarded a 100 percent rating, the Board finds that the Veteran’s unemployment was caused by being laid off from his prior position and having difficulty obtaining a job in his desired field due to his criminal convictions. See April 2015 VA examiner’s report. Moreover, the Veteran was offered a new job in January 2021 and is now in receipt of a security license which is required to obtain employment in his desired position guarding either a bank or a courthouse. See January 2021 VA examiner’s report. From January 14, 2014, the Veteran has not exhibited 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. Accordingly, the Veteran’s claim for a rating in excess of 50 percent for the period from January 14, 2014 is denied. 3. An effective date prior to January 14, 2014 for the grant of a 50 percent rating for an acquired psychiatric disorder. The Veteran contends that the effective date should be in 2012 for his 50 percent rating for his service-connected acquired psychiatric disability, the date of his initial increased rating claim. Generally, the effective date of an evaluation and award of compensation is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. For increased rating claims, VA may grant an effective date up to one year prior to receipt of the claim if it is “factually ascertainable” that an increase in disability occurred within one year of the claim. 38 C.F.R. § 3.400 (o). However, if the increase occurred more than one year prior to the claim, the increase is effective as of the date of claim. Gaston v. Shinseki, 605 F. 3d 979, 984 (2010) The Veteran filed his claim for an increased rating for his service-connected acquired psychiatric disability, to include PTSD, on March 5, 2012. Only evidence from the date of the increased rating claim, March 5, 2012, or a year before the date of claim was viewed to determine whether the Veteran is entitled to an increased rating in excess of 50 percent disabling. As previously explained herein, the record does not indicate that an increase in the Veteran’s service-connected acquired psychiatric disability occurred within one year prior to March 5, 2012. In fact, the record does not indicate that an increase in the Veteran’s service-connected acquired psychiatric disorder occurred until January 14, 2014. Accordingly, the Board must deny the claim for entitlement to an earlier effective date for the grant of an increased rating at 50 percent disabling for a service-connected acquired psychiatric disorder. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 4. Entitlement to a TDIU. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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 his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. 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”). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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 ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, a total rating may nonetheless be granted on an extraschedular basis in exceptional cases (and pursuant to specifically prescribed procedures) when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). In such cases, the Board cannot grant an extraschedular TDIU in the first instance and must refer the matter to the VA’s Director of Compensation Service (Director). Here, the Veteran is only service-connected for an acquired psychiatric disability rated at 30 percent from November 2, 2009 and at 50 percent from January 14, 2014. Accordingly, the Veteran does not meet the criteria for schedular TDIU at any time during the period on appeal. Nonetheless, extraschedular TDIU may still be for application. A July 2004 outpatient assessment contained in the Veteran’s service treatment records noted that the Veteran had a GED. A March 2007 service treatment record noted that the Veteran’s usual occupation was as a truck driver. A September 2011 VA treatment record notes that the Veteran graduated high school and worked part-time as a bouncer. An October 2011 VA treatment record notes that the Veteran was working repairing trailers and part-time as a bouncer. The record further notes that the Veteran was in school studying business. The record also notes that the Veteran applied for a job training soldiers but did not get the job because of a past conviction for driving under the influence. The Veteran’s ability to care for himself was noted as mildly impaired and the Veteran’s work and school performance was also noted as mildly impaired. A November 2012 VA treatment record notes that the Veteran was laid off from his job working as a large truck mechanic but that the Veteran reported that he hated the job and would not miss it. February 2013 and March 2013 VA treatment records again note that the Veteran was laid off from his job before Christmas and was on unemployment. The records further note that the Veteran was a bouncer at a bar and repaired semi-trailers but was bored with the job. He was interested in looking into education benefits and had started school, but left school to look for a job. A July 2013 VA treatment record documents the Veteran’s reports that he wanted to look for work but was leery of “rocking the boat” because of trouble caused by his past impulsive behaviors. The Veteran also reported that he did not need additional finances because his wife was working. The Veteran was afforded a VA examination for his service-connected acquired psychiatric disability in July 2013. The report notes that the Veteran was unemployed and had legal problems due to alcohol abuse within the past year. The Veteran reported that he had been doing welding and mechanical work for his brother-in-law but that he was let go last December because the company lost its biggest contract. The Veteran reported that he was looking for a job but had been unsuccessful. The July 2013 VA examiner determined that the Veteran’s psychiatric disability was manifested by occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran submitted a DBQ in January 2014 that he had completed by a private provider. The private provider determined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. A May 2014 VA treatment record notes that the Veteran reported that a job with his family did not work out because his dad was a “little flaky.” August 2014 and August 2015 VA treatment records note that the Veteran had three employment situations where others were very scared of him and he had to resign due to the different situations. The Veteran submitted a completed VA Form 21-8940 in October 2014, where he stated that his disability prevented him from securing or following any substantially gainful occupation and that his disability affected full-time employment beginning in November 2012. The Veteran reported that he last worked in November 2012 as a trailer repair mechanic. Before that, and immediately after separation from service, he worked as a bouncer at a sports bar and stated that he was fired three times for being too aggressive. The Veteran was afforded a VA examination via approved video telehealth for his service-connected acquired psychiatric disability in January 2021. The Veteran also reported that he recently obtained his license to work in security. He expressed a desire to work in armed security at a bank or courthouse. He also stated that the people who taught the security class offered him a job. Based on the foregoing, the Board does not find that a TDIU (specifically, referral to the Director) is warranted. At the outset, the Board acknowledges that the Veteran last worked in November 2012. The record indicates that the Veteran’s unemployment was caused by being laid off from his mechanical job due to the company losing its biggest contract. See July 2013 VA examiner’s report. The Veteran has also stated that he was fired three times from his other job as a bouncer for being too aggressive, however, there is no corroborating evidence in the record to support this contention. See August 2014 VA treatment record, August 2015 VA treatment record, and October 2014 VA Form 21-8940. The record indicates that the Veteran remained unemployed until at least January 2021. To the extent that the Veteran was not hired for other positions in which he was interested, the Board emphasizes that the Veteran reported that his past conviction for driving under the influence, not his service-connected acquired psychiatric disability, precluded him from certain positions. See October 2011 VA treatment record. In addition, the Veteran also expressed a desire to work as an armed security guard at either a bank or a courthouse and received the required license in approximately January 2021 and was even offered a job by the course instructors. Moreover, the Board also notes that the July 2013 VA treatment record indicates that the Veteran’s lack of motivation to seek employment was also due, in part, to having adequate financial resources with his wife’s pay. The preponderance of the evidence of record does not indicate that the Veteran’s service-connected acquired psychiatric disability caused him to be unemployable at any time during the period on appeal, rather the Veteran’s unemployment appears to be due to a lack of financial motivation and a desire to work in positions for which the Veteran was not qualified. Moreover, the Veteran himself admitted that he is currently employable and was offered a job. See January 2021 VA examiner’s report. Thus, because the record does not show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, the Board finds no reason to refer the Veteran’s claim to the Director for extraschedular TDIU consideration. The claim for entitlement to TDIU must be denied. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Palombi, 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.