Citation Nr: 21023542 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-10 049 DATE: April 20, 2021 ORDER A disability rating in excess of 30 percent for the service-connected posttraumatic stress disorder (PTSD) for the period prior to November 8, 2004 is denied. A disability rating of 50 percent, but no higher, for the service-connected PTSD for the period from November 8, 2004 is granted. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period prior to August 16, 2005 is denied. A TDIU due to service-connected disabilities for the period from August 16, 2005 is granted. FINDINGS OF FACT 1. Prior to November 8, 2004, the Veteran’s PTSD was not manifested by symptoms approximating occupational and social impairment with reduced reliability and productivity. 2. From November 8, 2004, the Veteran’s PTSD was manifested by symptoms approximating occupational and social impairment with reduced reliability and productivity. 3. The Veteran completed two years of high school and has not worked full-time since August 2005; he had experience as a letter carrier for the U.S. postal service, a medical carrier for a pharmacy supply company, and a courier for a law firm. 4. As of January 11, 2005, the Veteran’s service-connected disabilities included PTSD rated as 50 percent disabling, bilateral hearing loss, rated as 20 percent disabling, bilateral tinnitus, rated as 10 percent disabling, residual, and left knee traumatic arthritis associated with residuals of left knee injury, status post meniscectomy with traumatic arthritis and instability, rated as 10 percent disabling. 5. As of August 16, 2005, the Veteran’s last date of employment, the Veteran’s service-connected disabilities, at least as likely as not, precluded him from maintaining substantially gainful employment consistent with his education and work history. CONCLUSIONS OF LAW 1. Prior to November 8, 2004, the criteria for a disability rating in excess of 30 percent for the service-connected PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.400(o)(2), 4.126, 4.130, Diagnostic Code 9411. 2. From November 8, 2004, the criteria for a 50 percent disability rating, but no higher, for the service-connected PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.400(o)(2), 4.126, 4.130, Diagnostic Code 9411. 3. Prior to August 16, 2005, the criteria for entitlement to a TDIU were not more nearly approximated. U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 4. From August 16, 2005, the criteria for entitlement to a TDIU were more nearly approximated. 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 May 1968 to February 1970 and from August 1970 to April 1971. His second period of service is dishonorable for VA purposes. See September 2006 administrative decision. This case is before the Board of Veterans’ Appeals (Board) on appeal from July 2012 and September 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. In the July 2012 rating decision, the RO granted a TDIU effective from May 16, 2007. In the September 2016 decision, the RO granted service connection for PTSD and assigned an initial disability rating of 30 percent, effective from November 25, 1992, and a disability rating of 50 percent, effective from September 8, 2016. The present case has a long procedural history and has remained on appeal for nearly 30 years. VA received the Veteran’s initial claim for service connection for PTSD in December 1990. A February 1991 rating decision denied service connection for PTSD. The Veteran did file an appeal within one year of the decision. In November 1992, VA received a new claim for service connection for PTSD. Subsequently, in February 1993, VA received the Veteran’s claim for a TDIU. In a March 1993 rating decision, the RO again denied service connection for PTSD and denied a TDIU. In May 1993, VA received the Veteran’s Notice of Disagreement (NOD). In June 1993, the RO issued a Statement of the Case (SOC) for the issue of service connection for PTSD (now characterized as “service connection for depression and stress”). In November 1993, within one year of the March 1993 rating decision, VA received the Veteran’s VA Form 9 appeal to the Board. In May 1994, the RO issued a SOC for the issue of a TDIU. In May 1994, VA received the Veteran’s VA Form 9 appeal to the Board. The case reached the Board in May 2000 following additional rating decisions denying the claims in December 1993 and August 1996 and Supplemental Statements of the Case (SSOCs) issued in December 1993, September 1997, May 1998, and September 1998. In a May 2000 decision, the Board denied the Veteran’s claim for service connection for PTSD (now characterized as “a chronic acquired psychiatric disorder”) and remanded the issue of TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In an April 2001 Court Order granting a Joint Motion for Remand (JMR) the Court vacated the Board’s May 2000 decision and remanded the case for further development in compliance with the directives specified in the JMR. The Veteran then appealed the decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). However, in October 2001, the Federal Circuit dismissed the appeal. In December 2003, the Board remanded the case back to the RO for additional development of the record pursuant to the directives specified in the JMR. The case was not returned to the Board for over eight years. Notably, in July 2009, the Veteran filed a writ of mandamus with the Court for failure to provide expeditious treatment to his case. That month, the Court granted the writ and instructed the Secretary to advise the Court of the current status of the Veteran’s claims. In June 2012, the Board remanded the case for further development and adjudication. As noted above, in a July 2012 rating decision, the RO granted a TDIU effective from May 16, 2007 and in a September 2016 decision, the RO granted service connection for PTSD and assigned an initial disability rating of 30 percent, effective from November 25, 1992, and a disability rating of 50 percent, effective from September 8, 2016. In July 2013, VA received the Veteran’s NOD with the July 2012 decision and in October 2016, VA received the Veteran’s NOD with the September 2016 decision. In the October 2016 NOD, the Veteran also indicated disagreement of the effective date of November 25, 1992 assigned for service connection for PTSD. In September 2019, the RO issued a SOC. In October 2019, VA received the Veteran’s VA Form 9 appeal to the Board. In June 2020, the Board remanded the case for further development and adjudication. Furthermore, the Board denied an effective date prior to November 25, 1992 for the grant of service connection for PTSD. Although recent communications show that the Veteran continues to disagree with that decision, as the Veteran must appeal the denial to the Court to continue the appeal, the present Board decision only has jurisdiction to address the issues of the disability ratings assigned for the service-connected PTSD and the effective date of the Veteran’s TDIU. Increased Rating 1. Entitlement to a disability rating in excess of 30 percent for the service-connected PTSD for the period prior to September 8, 2016. 2. Entitlement to a disability rating in excess of 50 percent for the service-connected PTSD for the period from September 8, 2016. 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 diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD is currently evaluated as 30 percent disabling prior to September 8, 2016, and 50 percent disabling thereafter, under 38 C.F.R. § 4.130, Diagnostic Code 9411. PTSD and other acquired psychiatric disorders are rated under the General Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 30 percent disability rating is assigned for 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, panic attacks (weekly or less often), chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events).   A 50 percent rating is prescribed for 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. 38 C.F.R. § 4.130, Diagnostic Code 9411.   A 70 percent rating is prescribed for 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is prescribed for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id.   The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating.  The use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the Veteran’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  In other words, under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The analysis must include a determination as to whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). In determining whether the Veteran meets the criteria for a 70 percent rating, the Board must consider whether the Veteran has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, or mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). Furthermore, the Court has held that entitlement to a 70 percent disability rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation.” Vazquez-Claudio, 713 F.3d at 118. During an October 1993 psychiatric evaluation, the Veteran denied suicidal and homicidal ideation, and delusions and/or hallucinations; nevertheless, the psychiatrist noted “mild paranoid ideation.” The Veteran reported depression and anhedonia. However, he was oriented to “person, place, time and situation.” Concentration and speech were normal. Judgment was fair and mood was euthymic. The psychiatrist noted prior diagnoses of delusional (paranoid) disorder and generalized anxiety disorder but found the symptoms to be “in remission.” In March 1994, the same psychiatrist observed that the Veteran had “minimal” depressive symptoms, that he was “calm and relaxed,” and had a “fair to good” prognosis. There is no further relevant lay or medical evidence regarding the Veteran’s psychiatric symptoms until a November 8, 2004 VA psychology outpatient note. At that time, the Veteran reported awakening at night “with physiological arousal frightened, often having bad nightmares, some he does not remember.” Furthermore, he would “awaken at any slight sound and have to check the security of surroundings.” The Veteran also reported hypervigilance in crowds and preferred to avoid them “if at all possible. He indicated that he has “pronounced startle reaction, hitting [the] floor occasionally at sudden loud sound.” The Veteran feared “angry responses and losing control and hurting someone” but had “reinforced history of good controls.” The psychologist noted no mental abnormalities during the visit. See G.N., Ph.D., VA psychology outpatient note dated November 8, 2004. There was no indication of loose associations, delusions, or suicidal ideation. In January 2005, the Veteran received a VA psychiatric examination. During the examination, the Veteran reported “chronic” bouts of depression and anxiety lasting for 2 to 3 days, panic attacks accompanied by “difficulty breathing,” “muscle tightening,” and fear that “he will lose control.” In an April 2005 VA psychiatry outpatient note, the Veteran reported sleeping 3 to 6 hours per night. He denied suicidal and homicidal ideation and presented with no evidence of hallucinations or delusions. The Veteran also reported “blue affect, crying spells, sleep pattern disturbance … bouts of confusion, mild psychomotor retardation and agitation, hopelessness, irritability, indecisiveness, and personal devaluation.” A mental status exam revealed normal memory and concentration. There was no evidence of “perceptual distortions” or “abnormal thought content.” Mood was “bland/depressed” and affect was “blunted.” The Veteran denied “suicidal, homicidal, and destructive ideas and impulses.” Finally, he reported nightmares related to Vietnam. See VA psychiatric outpatient note dated April 5, 2005. During a September 2005 psychiatry evaluation related to the Veteran’s claims for Social Security Administration (SSA) disability benefits, the Veteran reported sleeping no more than 5 hours per night and being awoken “frequently” due to panic attacks. He also indicated “mild difficulty” with short term memory. The Veteran reported a suicide attempt during service but was “adamant in indicating no current expectations.” Mood and affect were “generally appropriate.” During a July 2007 VA mental health consultation, the Veteran reported nightmares about “dead bodies.” He again indicated experiencing panic attacks, during which it felt “like my breathing is shutting down.” The Veteran indicated shakiness and nausea during attacks. Mood was irritable and dysphoric. There was no evidence of suicidal or homicidal ideations or psychotic symptoms. See VA mental health consultation dated July 31, 2007. In a July 2010 VA psychiatry outpatient note, the Veteran reported depression, “weak energy,” and poor concentration. Furthermore, he indicated that he had “passing” thoughts of suicide but without “any plans or efforts.” Affect was depressed, but a mental status exam otherwise unremarkable with “future orientation intact.” VA psychiatry outpatient note dated July 9, 2010. In a subsequent June 2011 VA psychiatry outpatient note, the Veteran reported continued nightmares and hypervigilant behaviors, including keeping “a gun by the bedside for protection” and “exaggerated startle response.” He also reported continued depression, sleep impairment, trouble concentrating, and lack of energy. See VA psychiatry outpatient note dated June 27, 2011. During a psychiatry visit in April 2012, the Veteran reported continued sleep impairment and fatigue during the day. He also indicated daily flashbacks related to Vietnam. There was no evidence or suicidal or homicidal ideation or psychosis. Speech was normal and cognition and judgment were intact. See VA psychiatry noted dated April 24, 2012. In July 2013, the Veteran reported that he was sleeping “fairly well” but still had frequent nightmares about Vietnam. He appeared slightly anxious with congruent affect, normal speech, and intact cognition. The Veteran denied suicidal or homicidal ideation. See VA psychiatry outpatient note dated July 8, 2013. In August 2015, the Veteran received another VA psychiatric examination. However, the examiner provided no findings regarding the Veteran’s current mental health symptoms. The Veteran most recently received a VA psychiatric examination in September 2016. The examiner opined that the Veteran’s PTSD was manifested by symptoms approximating occupational and social impairment with reduced reliability and productivity. At the time of the examination, symptoms included depressed mood anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation. Regarding the suicidal ideation, the Veteran reported, “I think about suicide … but my religion says it is a sin” and that he had “fleeting thoughts without urge or intent.” The Veteran has not received an examination for his PTSD since September 2016. However, he has not contended, and the evidence does not show, that his PTSD symptoms have worsened since his last VA examination. In this regard, since September 2016, the Veteran has consistently denied depression or anxiety related to PTSD. Based on the foregoing, a 50 percent disability rating for the service-connected PTSD is warranted from November 8, 2004, the date of a VA psychology outpatient note. As of that date, the Veteran’s PTSD was manifested by symptoms most closely approximating occupational and social impairment with reduced reliability and productivity. In this regard, the evidence shows that the Veteran was experiencing frequent panic attacks, especially at night, as of that date. Subsequent VA and SSA records indicate symptoms of flat affect, memory loss, and frequent and severe nightmares. There is no indication that the Veteran experienced substantially different or elevated symptoms during the September 2016 examination when compared to his manifested symptoms as of November 2004. Therefore, resolving reasonable doubt in favor of the Veteran, the criteria for a 50 percent disability rating are met as of November 8, 2004. However, a disability rating in excess of 30 percent for the Veteran’s service-connected PTSD prior to November 8, 2004 is not warranted. In this regard, there is no lay or medical evidence showing that the Veteran experienced any of the following prior to November 8, 2004 (during the period on appeal): 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. Notably, as of April 1994, the Veteran’s psychiatric symptoms were in remission, and there is no evidence showing worsening until the November 2004 VA psychology outpatient note. Furthermore, a disability rating in excess of 50 percent is not warranted at any time during the period on appeal. Although there is some evidence of passive suicidal ideation, the Veteran has consistently denied plan or intent. Furthermore, there is no evidence of hallucinations, delusions, or homicidal ideation during the period on appeal. Finally, there is no evidence of 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); inability to establish and maintain effective relationships. As such, the criteria for a disability rating in excess of 50 percent for the service-connected PTSD have not been met. TDIU 3. Entitlement to a TDIU for the period prior to May 16, 2007. The Veteran seeks a TDIU prior to the current effective date of May 16, 2007. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). In determining unemployability, consideration should be given to the veteran’s prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Faust, 13 Vet. App. 342 (2000). Entitlement to a TDIU does not require 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). All reasonable doubt as to any material matter, including the degree of disability, will be resolved in favor of the claimant. 38 U.S.C. § 5107, 38 C.F.R. § 4.3. The Veteran first met the schedular criteria for a TDIU as of January 11, 2005. As of that date, the Veteran’s service-connected disabilities included PTSD rated as 50 percent disabling, bilateral hearing loss, rated as 20 percent disabling, bilateral tinnitus, rated as 10 percent disabling, residual, and left knee traumatic arthritis associated with residuals of left knee injury, status post meniscectomy with traumatic arthritis and instability, rated as 10 percent disabling. Given that the Veteran had at least one disability ratable as 40 disabling or greater and a combined disability rating of at least 70 percent as of January 11, 2005, the schedular criteria for a TDIU are met from that date. Accordingly, the only remaining question is whether the Veteran’s service-connected disabilities preclude substantially gainful employment consistent with his education and work history prior to the current TDIU effective date of May 16, 2007. SSA records show that the Veteran worked full-time as a courier until 2005. He had experience as a letter carrier for the U.S. postal service until 1990, a medical carrier for a pharmacy supply company, and a courier for a law firm. See August 2005 SSA work history questionnaire. On his VA Form 21-8940 Application for Increased Compensation Based on Unemployability, received in June 2013, the Veteran reported that his last date of full-time employment was August 16, 2005. However, he claimed that he became too disabled to work as of October 6, 1990, the date that he last worked full-time for the U.S. Postal Service. In an August 2005 SSA work history questionnaire, the Veteran reported that at his last job as a courier, he was required to stand for 8 hours and walk for 4 hours each day. Additionally, he indicated that he would lift files “weighing from 80 to 100 lbs” up to “200 or 300 ft” and that he would frequently lift weights of 70 lbs. Regarding the impact of his service-connected physical disabilities on his employment, during an August 2007 VA examination of his left knee, the Veteran reported left knee weakness, giving way, stiffness with prolonged activity, and swelling at the end of the day. Examination of the left knee revealed “locking,” pain, and crepitus with pain starting at 45 degrees on flexion of the left knee. Medial and lateral meniscus tests of the left knee were “abnormal with severe degree of severity.” In a March 2008 SSA disability determination, which granted SSA disability benefits from August 16, 2005, the deciding administrative law judge (ALJ) concluded that the Veteran’s “knee impairments by themselves would seriously interfere with his ability to stand/walk for prolonged periods,” relegating the Veteran to sedentary work activity. Turning to the service-connected bilateral hearing loss, during a January 2005 VA audiological examination, the Veteran reported “difficulty understanding speech in the presence of competing noise.” Finally, regarding the Veteran’s service-connected PTSD, during the September 2005 psychiatric evaluation associated with his claim for SSA disability benefits, the psychological examiner opined that the Veteran’s psychiatric symptoms would not cause “any impairment of work-related abilities.” Notwithstanding, as discussed above, the Veteran experienced symptoms of frequent panic attacks, chronic sleep impairment, depression, and anxiety, among other symptoms, around the time that he was last employed full-time in August 2005. After considering all of the evidence of record, including the Veteran’s statements and the medical evidence, the Board finds that the preponderance of the evidence shows that, as of the Veteran’s last date of employment on August 16, 2005, the Veteran’s service-connected disabilities, in conjunction, precluded performance of substantially gainful employment. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 77 F.3d 1350, 1354 (Fed. Cir. 2013). Specifically, the Veteran’s SSA records, including the September 2005 psychiatric examination and March 2008 disability determination, January 2005 audiological examination, and August 2007 VA knee examination appeal show impairment resulting in diminished employability prospects due to symptoms such as left knee pain, weakness, swelling, and giving way, diminished hearing acuity, and frequent panic attacks, chronic sleep impairment, depression, and anxiety associated with the service-connected PTSD. These records show that the Veteran’s physical impairments, which included inability to stand or walk for prolonged periods, and psychological impairments (summarized in detail in the section above) resulted in inadaptability to work consistent with the physical demands of the Veteran’s prior employment prior to the May 16, 2007 effective date currently assigned for the Veteran’s TDIU. Notably, the Veteran’s employment history involves largely physical labor rather than sedentary work. However, a TDIU is not warranted prior to August 16, 2005. In this regard, the evidence shows that the Veteran’s last date of full-time employment was August 16, 2005. Furthermore, the Veteran has not alleged, and the evidence does not show, that his employment prior to August 16, 2005 was marginal or otherwise in a protected work environment. Thus, given the lay and medical evidence indicating the Veteran’s functional limitations due to his service-connected disabilities, and in light of his work experience, training, and education, the preponderance of the evidence supports assignment of a TDIU from August 16, 2005, the Veteran’s last day of employment. Accordingly, the assignment of a TDIU is warranted from August 16, 2005. See Geib, 77 F.3d at 1354. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.