Citation Nr: 21024305 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-14 770 DATE: April 22, 2021 ORDER Entitlement to an initial 70 percent disability rating, but no higher, for posttraumatic stress disorder (PTSD), major depressive disorder, and alcohol dependence is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 16, 2008 is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, since the October 29, 2004 effective date of the grant of service connection, his PTSD, major depressive disorder, and alcohol dependence more closely approximates occupational and social impairment with deficiencies in most areas. 2. Resolving all reasonable doubt in favor of the Veteran, the evidence demonstrates that his service-connected disabilities preclude him from securing and following any substantially gainful employment prior to October 16, 2008. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent disability rating for PTSD, major depressive disorder, and alcohol dependence from October 29, 2004 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Codes 9434-9411. 2. The criteria for entitlement to a TDIU have been met prior to October 16, 2008. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1971 to April 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico denying the Veteran’s claim for service connection for PTSD. In an August 2013 rating decision, the RO granted service connection for PTSD, major depressive disorder, and alcohol dependence and assigned a 30 percent disability rating. The Veteran disagrees with the 30 percent rating and contends that a higher rating is warranted. The Board remanded this case in April 2019 for further development. During the pendency of this appeal, in a July 2017 rating decision, the RO granted entitlement to a TDIU, effective April 4, 2017. Thereafter, in an October 2108 rating decision, the RO granted an earlier effective date of October 16, 2008 for TDIU. However, as TDIU is part and parcel of the increased rating claim for PTSD, the claim for a TDIU prior to October 16, 2008 remains on appeal. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an initial 70 percent disability rating, but no higher, for PTSD, major depressive disorder, and alcohol dependence is granted. The Veteran contends that his PTSD, major depressive disorder, and alcohol dependence is worse than his current disability rating reflects. More specifically, in the August 2013 notice of disagreement, the Veteran contended that his psychiatric disabilities warranted a 100 percent disability rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 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. 38 C.F.R. § 4.7. The veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, (2007). The Veteran’s PTSD, major depressive disorder, and alcohol dependence is rated as 30 percent disabling from the October 29, 2004 effective date of the grant of service connection under 38 C.F.R. § 4.130, Diagnostic Codes 9434-9411. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 9434 rates major depressive disorder and Diagnostic Code 9411 rates PTSD. 38 C.F.R. § 4.130. Both diagnostic codes are governed by a General Rating Formula for Mental Disorders. Id. A 30 percent rating is warranted 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 warranted 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; and/or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted 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); and/or inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126; see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. Id. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 – 17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Board notes that the Diagnostic and Statistical Manual, Fourth Edition, allowed for the assignment of Global Assessment of Functioning (GAF) scores, which are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. However, VA regulations were amended to adopt the Diagnostic and Statistical Manual, Fifth Edition (DSM-5), which eliminated the use of GAF scores for evaluating mental illness. 80 Fed. Reg. 14,308 (Mar. 19, 2015). As GAF scores are no longer held to be an effective method of evaluating the severity of psychiatric disabilities, the Board will not rely on any GAF scores in adjudicating the present claim. Golden v. Shulkin, 29 Vet. App. 221, 22426 (2018). In reaching the below conclusions, the Board has considered the Veteran’s statements regarding the severity and frequency of psychiatric symptoms. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing an increased level of psychiatric symptomatology. Washington v. Nicholson, 19 Vet. App. 362 (2005). Thus, in the assignment of each of the ratings, the Veteran’s statements have been weighed in with the medical evidence during each of the staged periods as discussed below. According to an undated psychiatric evaluation that was conducted by Dr. Jaime Marchena when the Veteran was 52 years old (approximately 2003 or 2004), the Veteran became addicted to alcohol after separation from service in order to reduce intrusive memories and to cope with his fears and traumatic incidents. He worked as a plumber until 1999, when he stopped reportedly due to psychiatric problems. The Veteran was unemployed and Dr. Marchena found that he was totally and permanently disabled due to severe emotional and medical issues. It was noted that the Veteran had herniated disc, carpal tunnel syndrome, muscle spasms, and cervical and lumbar spasms. His psychiatric symptoms included flashbacks, intrusive thoughts, irritability, nightmares, difficulties sleeping, poor concentration, hypervigilance, negative thoughts, low energy level, depression, low self-esteem, lack of pleasure from life, frequent death wishes, reliving traumatic incidents, intense emotional distress at reminders of trauma, avoidance behavior (avoiding thoughts, feelings and conversations about traumatic events), and severe difficulty remembering many aspects of his traumatic events. The Veteran’s symptoms had contributed to a number of interpersonal problems and left him socially isolated. His decreased ability to block out intrusive memories of traumatic events resulted in considerable psychological and functional impairment. Dr. Marchena found that the Veteran’s psychiatric symptoms would render him unable to find and maintain employment. Mental status examination revealed predominantly depressed mood, irritable affect, disorganized narrative, guarded short- and long-term memory, and concentration difficulties. The Veteran was oriented, but had difficulties with dates and time, and while he denied suicidal and homicidal thoughts, he had frequent death wishes. According to an April 2004 psychological assessment by Dr. Edgard R. Martinez Santiago, the Veteran’s traumatic war experiences caused him to feel very depressed and, eventually, his social and work performance started to deteriorate. His trauma significantly impacted the organization of his thoughts, which resulted in a significant reduction in his contact with reality. Dr. Santiago found that the Veteran was, in general, an unhappy pessimist and underestimated his own abilities. This created a “strong ground” to develop irritability, lack of sleep, and depressive states. His psychiatric symptoms included sadness, crying/weeping, nightmares, memories of war, weird dreams he could not remember, apprehension, fear of losing his mind, doubts, insecurities, blame, depression, confusion, and a tendency to overact in situations. The Veteran had significant indicators of guilt, tension, dissatisfaction, and persecution delirium. Dr. Santiago found that it would be typical to expect “this kind of person” to find refuge in fantasy, have a perception of himself that would not be realistic, and take a long time doing innumerable projects that would consequently never be finished. During the evaluation, the Veteran was capable of comprehending and following instructions with minimal supervision and performed tasks in a slow and measured manner. When faced with difficult tasks, he persevered and completed the tasks with planning and, when necessary, trial and error. In the beginning, the Veteran’s verbal communication was sparse and defensive, but eventually their interaction was friendly, open, and cooperative. He was oriented with no significant indicators of severe disturbances in sensory and cognitive processes. Social judgment was within expected parameters, but it was also noted that he inhibited expressing emotions and tried not to involve himself in constructive social activities. The Veteran’s emotions were in accordance with thought content. However, at times, his affective expressions showed little intensity. Also, when he demonstrated sadness, he was observed sobbing as he was describing his experiences in the special forces. Dr. Santiago found that the Veteran required psychiatric treatment and, if possible, the reduction of situations that could create “tensions or crisis” to avoid reliving his past experiences (i.e., flashbacks). The possibility of the Veteran obtaining employment was poor due to his significantly limited mental condition. In a March 2005 VA examination, the examiner found that the Veteran did not have PTSD, but an anxiety disorder. The examiner noted that Dr. Marchena reported a history of alcohol addiction. It was noted that the Veteran was a high school graduate and that he had had a vocational course. He worked until August 5, 1999 as an industrial mechanic at Johnson & Johnson Company for 20 years. The Veteran stopped working after suffering a serious muscular spasm while working under a machine. He was sent for an evaluation and the company’s physician ordered his retirement. He did not receive psychiatric treatment until 2000, after his retirement. He had “a lot of free time,” was restless, and was remembering what happened in Vietnam. He was unable to return to his previous job and became depressed. At times, he woke up feeling very anxious or ill-humored. The Veteran lived with his wife and had two adult children. He reported that had had many quarrels with his wife because they “now stay[ed] together for a long time.” Mental status examination revealed that the Veteran was clean, adequately dressed and groomed, and alert and oriented. He had a somewhat anxious mood, constricted affect, good attention and concentration, good memory, clear and coherent speech, fair insight and judgment, and good impulse control. The Veteran denied hallucinations and being suicidal or homicidal. In an October 2005 VA 9, the Veteran reported nightmares, flashbacks, feelings of guilt, and “desires to quit his life.” In an October 2008 VA examination, the examiner noted that the Veteran’s psychiatric symptoms included recurrent distressing dreams, waking up “scared,” difficulty falling or staying asleep, irritability or outbursts of anger, easily losing control, suicidal ideas without structured plan, crying bouts when alone, and mind going “blank.” The examiner found that this disturbance did not cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The Veteran consumed alcohol in social events, two or three beers, without behavioral or legal consequences. However, it was noted the Veteran seemed to minimize his alcohol addiction. He described his marital relationship as “not perfect,” but noted that they were still married after 32 years. He described his relationship with his two children as “good.” He had many friends and had good relationships with his relatives and neighbors. The Veteran’s recreational activity included fishing. He also took care of the garden at home, which he described as looking like a “forest” and having many plants. He also traveled with his wife. The Veteran reported that he stopped working after suffering a serious muscular spasm while working under a machine. He denied problems with activities of daily living, to include ambulation, exercising, bathing, grooming, and self-feeding. Mental status examination showed that the Veteran was clean and casually dressed, but unshaved for more than two to three days, attentive and irritable towards the examiner, and oriented. He had unusual psychomotor activity (i.e., touching his forehead and left ear constantly with his left hand), unremarkable speech, appropriate affect, anxious and dysphoric mood, intact attention, unremarkable thought process and content, no delusions, no hallucinations, no inappropriate behavior, no obsessive or ritualistic behavior, no panic attacks, no homicidal or suicidal thoughts, and fair impulse control. For judgment, the Veteran understood the outcome of his behavior, and for insight, he did not understand that he had a problem. The Veteran had sleep impairment described as feeling “tired and broken” the next day. While he had no episodes of violence, the Veteran had an angry outburst during the examination and started yelling obscenities during the interview (“[D]on’t ask any more f… questions…”). His immediate memory was moderately impaired and was only able to recall one word after five minutes of delay. According to a November 2009 assessment by Dr. Nanette A. Ortiz Valentin, the Veteran’s psychiatric symptoms included sleep problems, nightmares, flashbacks, fear and anxiety, nervousness, irritability and frustration, hypervigilance, hyperarousal, depressed mood, marked decrease in interest and pleasure in most of his usual activities, feelings of worthlessness, sadness, frequent crying spells, isolation, suicidal thoughts, and avoidance behavior (i.e., avoiding crowded places, tunnels, dark places, war movies or scenes of violence, forests or places that remind him of Vietnam, and loud noises). He reported having the feeling that “something could happen” or that “someone [wa]s watching him.” Loud noises, especially from airplanes, helicopters, and fireworks, caused him to panic. His wife slept in another room because he woke up at night and attacked her. Dr. Valentin noted that the Veteran could not handle stress or react appropriately to his physical and social environment. In a March 2011 VA examination, the Veteran’s psychiatric symptoms included sleep difficulties described as fragmental sleep, nightmares, irritability, death wishes, crying spells, isolation, concentration difficulties, recurrent intrusive thoughts, avoidance behavior, and markedly diminished interest or participation in significant activities. The examiner found that this disturbance did not cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. While the examiner found there was not total occupational or social impairment due to PTSD symptoms, the Veteran did have deficiencies in thinking (some cognitive decline, such as memory), family relations (due to mood instability), work (due to mood instability that limited social functioning in the work environment and cognitive limitation impairing the ability to sustain concentration to permit timely and appropriate completion of simple tasks and ones commonly found in work settings), and mood. The examiner found that there was reduced reliability and productivity due to PTSD symptoms. There were problems with activities of daily living to include slight impairment with dressing and undressing, moderate impairment with shopping and driving, and inability to perform household chores, sports/exercise, traveling, and other recreational activities. The Veteran’s treatment included anti-depressants, but he stated that the medication did not help. He also reported that his psychiatric symptoms occurred daily and were severe. It was noted that the Veteran had completed high school, but had no post-service educational accomplishments. He had been employed with Johnson & Johnson Company for 20 years and retired in 1999 due to medical problems. He indicated that this was due to back problems. The Veteran maintained good family relations, though they were somewhat distant at times. He described his children and wife as very supportive, but could not recall the age of one of his children. He did not report activities or leisure pursuits. The Veteran could manage his financial affairs with supervision, but showed moderate cognitive decline that limited his ability to manage his financial affairs independent of supervision. Mental status examination revealed that the Veteran had a clean appearance, tense psychomotor activity, clear and coherent speech, guarded attitude towards the examiner, blunted affect, expansive and depressed mood (presented as episodes of crying spells), intact attention (although he was unable to do serial 8’s or spell a word forward and backward), sleep impairment (tired all the time), paucity of ideas in his thought process, preoccupation with one or two topics in his thought content, no delusions, no hallucinations, no inappropriate behavior, no obsessive or ritualistic behavior, no panic attack, no homicidal or suicidal thoughts, and no episodes of violence. He was oriented as to person and place, but only partially oriented to time. As for his judgment, he understood the outcome of his behavior, and as for his insight, he understood that he had a problem. He had mildly impaired remote memory and moderately impaired recent memory. According to post-service private treatment records from November 2004 to July 2007, the Veteran reported struggling, negative ideas, anxiety and fear, and feeling very upset. In February 2005, it was noted that he did not talk with friends or family and in March 2005, it was noted that he was disoriented. According to post-service VA treatment records, the Veteran’s psychiatric symptoms included depression and depressive episodes, sadness, mood swings, anhedonia, anergia, lack of motivation, recurrent nightmares and distressing dreams, sleep problems and insomnia, waking up anxious and/or screaming, recurrent intrusive thoughts and memories, flashbacks, social isolation, irritability and being easily upset, avoidance behavior (i.e., conversations and nightmares related to traumatic incidents), recurrent fear of being followed, and poor concentration. In March 2016, the Veteran reported that he remembered his Vietnam experienced every day and it was observed that he became tearful when speaking of these experiences. He was again observed to being tearful when speaking of his in-service trauma in April 2017. The Veteran had been disabled and not worked since 1999 due to back problems, such as discogenic disease, herniated discs, and cervical spine issues. His wife reported that he had been a very obsessive person and that when he started a job, he would not stop until he finished it. He described his wife as supportive and stated that he had a good relationship with his children. He would sometimes visit his daughter. In January 2014, it was noted that he slept in a different bedroom from his wife because he used to wake up in the middle night screaming and would unintentionally hit her. The Veteran consumed alcohol socially and in March 2016, it was noted that he drank up to six beers three times a week. In August 2016, the Veteran stated that while some people had told him that he had a problem with alcohol, he did not pay attention to them since people “always sa[id] the wrong things.” The Veteran was active in church, which was reportedly helpful. He also enjoyed spending time in the garden and landscaping, and visiting the beach. Mental status examinations from January 2014 to November 2016 showed that the Veteran was consistently alert and attentive, oriented, cooperative and reasonable, and adequately or well-groomed. He had adequate eye contact, normal motor activity, normal speech, intact language, no perceptual disturbances (hallucinations or delusions), normal thought process and thought content, to include no suicidal or homicidal ideation, and good or fair insight and judgment. With the exception of the March 2014 mental status examination in which he had an euthymic mood, the Veteran had a depressed mood. His affect was either broad/full range or congruent with mood. While the Veteran consistently denied suicidal ideation in his mental status examinations, in January 31, 2014, he admitted to suicidal thoughts in the past. Approximately a year and a half prior, he had suicidal thoughts of crashing his car, but desisted of these ideas because he did not want to hurt anybody. The Veteran generally had an intact memory, but in March 2014, he was noted to have impaired immediate memory and in January 2015, he was noted to have impaired immediate, recent, and remote memory. On December 13, 2013, the Veteran was admitted to the psychiatric acute inpatient care unit due to suicidal ideas in the past week due to his Vietnam memories. He also reported having intermittent suicidal ideas for several years and intermittent self-harm ideas without plan. The Veteran also reported interrupted sleep, nightmares, poor concentration, crying spells, vivid images of his war experiences, hypervigilance, and feeling sad and depressed with difficulties identifying interest in daily activities, persecuted, and worthless and hopeless. He was observed to be tearful as he talked. The Veteran’s wife reported that the Veteran had been obsessed with Vietnam since 1979 and that this interest increased since 1999, when he was disabled. She also reported that he was sometimes disoriented, there were days when he did not eat, he spent most of the day in bed without interest in daily activities, sharing with family, or grooming himself, and he worked on many activities without completing some of them. It was noted that the Veteran minimized his alcohol consumption and that he had gradually increased the amount of alcohol he ingested. The Veteran was hospitalized for inpatient psychiatric care to stabilize his acute symptoms, specifically suicidal ideation, severe depressive symptoms, and exacerbation of PTSD. He was discharged on December 18, 2013. In December 14, 2013, the Veteran presented with sadness, depression, crying spells, decreased energy, decreased appetite, poor sleep, nightmares, isolation, hypervigilance, and flashbacks. He also presented with inadequate hygiene, feelings of worthlessness and hopelessness, melancholia, irritability, and suicidal ideation attempt, even though he denied suicidal ideation. He also denied harm to others ideation or hearing or seeing things not perceived by others. From December 15, 2013 to December 18, 2013, the Veteran reported feelings better. He consistently denied homicidal ideas and seeing or hearing things not perceived by others, and reported feeling better. In December 15, 2013, he admitted to having death wishes, but denied active suicidal ideas. In December 16, 2013, he reported sadness, tiredness, low self-esteem, crying spells, and hopelessness. He referred to difficulties in anxiety management, lack of sleep, sadness, anger, and auditory hallucinations that could be affecting his participation in daily occupations. He identified his wife as a supportive system, but also reported that he had consumed half a bottle of wine every day for the last week and his wife did not know. In the December 18, 2013 discharge note, the Veteran described himself as feeling better and was noted to be smiling and interacting well with others. His general appearance ant attitude, mood, and affect were improved. He was alert and oriented and had an euthymic mood, broad affect, normal thought process, fair insight, adequate judgment and no suicidal or homicidal ideation, plans, or intentions, no auditory or visual hallucinations, or delusional influence. Mental status examinations from December 13, 2013 to December 17, 2013 showed that the Veteran was appropriately, adequately, or fairly dressed and groomed, alert and oriented, and cooperative. He consistently denied homicidal thoughts, plans, or ideas and did not have loose associations, flight of ideas, phobias, racing thoughts, panic attacks, obsessions or compulsions, disorders of perception, or visual or auditory hallucinations. He had sad or depressed mood, congruent affect, normal thought process, and intact memory. The Veteran had suicidal thoughts and ideas on December 13th, active death wishes, but no suicidal ideas on December 14th and 15th, and no suicidal ideation on December 16th and 17th. He demonstrated intermittent eye contact on December 13th and 14th, which improved to fair and then good by the time of his discharge. Paranoid delusional thoughts were elicited on December 13th, but did not have delusions in subsequent mental status examinations. The Veteran generally had normal speech and no psychomotor retardation/agitation except on December 16, 2013, when he had a mildly decreased rate of production for speech and mild psychomotor retardation. He generally had impaired concentration attention except on December 13th and December 17th. His insight and judgment were poor or superficial except on December 17, 2013, when they were fair. Based on a careful review of the subjective and clinical evidence and resolving all reasonable doubt in favor of the Veteran, the Board finds that from the October 29, 2004 effective date of grant of service connection, the Veteran’s PTSD, major depressive disorder, and alcohol dependence warrants a higher 70 percent rating. In other words, his psychiatric disorder more closely approximates occupational and social impairment with deficiencies in most areas. In that regard, the Board finds that from October 29, 2004, the following provides the most probative evidence demonstrating the frequency, severity, and duration of the Veteran’s mental health symptomatology as well as its functional impact and that such falls within the criteria for a 70 percent rating: (1) findings by Dr. Marchena in an undated psychiatric evaluation that the Veteran’s PTSD resulted in frequent death wishes, predominantly depressed mood, disorganized narrative, guarded short- and long-term memory, concentration difficulties, and difficulties with dates and time; (2) the Veteran demonstrating severe depression, confusion, persecution delirium, inhibited affective expressions, and sobbing when describing his military experiences in an April 2004 assessment by Dr. Santiago; (3) reports and findings in lay statements and medical records that the Veteran had death wishes, suicidal thoughts, and crying spells; (4) findings by the October 2008 VA examiner that the Veteran’s psychiatric symptoms included irritability or outbursts of anger, easily losing control, suicidal ideas without structured plan, crying bouts when alone, and mind going “blank,” (5) observations of the October 2008 mental status examination that the Veteran was unshaved for more than two to three days, displayed unusual psychomotor activity and an angry outburst when he yelled obscenities at the VA examiner, and had moderately impaired immediate memory; (6) findings by Dr. Valentin in a November 2009 assessment that the Veteran could not handle stress or react appropriately to his physical and social environment; (7) findings by the March 2011 VA examiner that the Veteran had deficiencies in thinking, family relations, work, and mood, moderate cognitive decline that limited his ability to manage his financial affairs independently, expansive and depressed mood presented as episodes of crying spells, partial orientation to time, mildly impaired remote memory, and moderately impaired recent memory; and (8) post-service VA treatment records showing that the Veteran had to be hospitalized in December 2013 due to suicidal ideas and severe depressive symptoms during which he demonstrated poor judgment and insight. The record thus reflects deficiencies in most areas due to PTSD, major depressive disorder, and alcohol dependence symptoms, specifically suicidal ideation, severe depression, memory impairment, angry outbursts, crying spells, and disorientation to time throughout the appeal period. Although the evidence does not show symptomatology such as 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, and spatial disorientation, the symptoms noted in the rating schedule are not intended to constitute an exhaustive list, but rather are designed to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Thus, even though not all the listed symptoms compatible with a 70 percent rating are shown, the Board concludes that the type and degrees of symptomatology contemplated for a 70 percent rating appear to be demonstrated since October 29, 2004. However, the Board emphasizes that the symptoms associated with the Veteran’s PTSD do not meet the criteria for the maximum 100 percent, rating at any time. A 100 percent rating requires total occupational and social impairment due to certain symptoms. The Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran’s PTSD, major depressive disorder, or alcohol dependence. The evidence of record does not indicate that the Veteran exhibited gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). He may have some occupational and social impairment, but the record does not show that he has total social impairment. In fact, the record shows that the Veteran consistently reported that his wife was a strong support system and that he had close relations with his children. He also was active in church and had friends. Collectively, the Board finds that the psychiatric symptoms shown do not support the assignment of a 100 percent rating. Accordingly, the Board finds that the criteria for a rating of 70 percent, but no higher, for PTSD, major depressive disorder, and alcohol dependence, from the October 29, 2004 effective date of grant of service connection is warranted. 2. Entitlement to TDIU prior to October 16, 2008 is granted. The Veteran is seeking a TDIU based on his service-connected disabilities. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). Marginal employment shall not be considered substantially gainful employment. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a “living wage.” Id. Marginal employment is defined as an amount of earned annual income that does not exceed the poverty threshold determined by the Census Bureau. 38 C.F.R. § 4.16 (a). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16 (a). If a sufficient rating is present, then it must be at least as likely as not that the veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16 (a). 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). The issue is not whether the Veteran can find employment generally, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991). In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The phrase “unable to secure and follow a substantially gainful occupation” has been interpreted to consist of two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 72 – 74 (2019). The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. at 73. With respect to the noneconomic component, when determining whether a veteran can secure and follow a substantially gainful occupation, consideration should be given to the following: (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required; and, (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. at 73 – 74. The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 773 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the VA examiners’ conclusions are not dispositive. However, the observations of the examiners regarding functional impairment due to the service-connected disability go to the question of physical or mental limitations that may impact his ability to obtain and maintain employment. As an initial matter, the Board finds that the Veteran’s TDIU claim is part and parcel with an increased rating claim that had been on appeal, which was filed on October 29, 2004. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Additionally, the Board notes that the only period for which the Veteran has not been granted a TDIU is from October 29, 2004 to October 15, 2008. As such, the Board will consider whether the Veteran is entitled to a TDIU for this period only. As of this decision, from October 29, 2004 to October 15, 2008, the Veteran is service connected for PTSD, major depressive disorder, and alcohol dependence at 70 percent disabling, lumbar degenerative disc disease at 40 percent disabling, right lower extremity radiculopathy at 10 percent disabling, and left lower extremity radiculopathy at noncompensably disabling. His combined disability from October 29, 2004 to October 15, 2008 rating is 80 percent. Therefore, the Veteran’s service-connected disabilities met the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a). The question remaining before the Board is whether the Veteran’s service-connected disabilities precluded him from engaging in substantially gainful employment consistent with his educational and occupational background from October 29, 2004 to October 15, 2008. A careful review of the record reveals that the Veteran worked as an industrial mechanic from 1979 to August 1999 at Johnson & Johnson. The Social Security Administration (SSA) found that he was disabled due to carpal tunnel syndrome (primary diagnosis) and disorders of the back (secondary diagnosis). The record indicates that the Veteran’s job included repairing and maintaining machinery, observing and identifying issues in machinery, and dismantling devices to access defective parts. In the March 2017 Application for Increased Compensation based on Unemployability, the Veteran reported that his highest gross earnings per month was $2,000. According to an August 2017 Request for Employment Information completed by the Veteran, he earned $27,000 during the 12 months preceding the last date of his employment. He indicated that he had been terminated due to his disability. According to an August 5, 1999 Disability Determination Summary, the Veteran had bilateral median nerve compression at the wrist, cervical radiculopathy, chronic cervical root lesion, lumbosacral radiculopathy, and bilateral root lesion. He could not perform his duties and the medical examiner found that a job modification would require too many considerations. The Veteran graduated from high school. The Board incorporates here the factual background pertaining to the Veteran’s service-connected PTSD, major depressive disorder, and alcohol dependence detailed above. In a January 2005 VA examination, the Veteran reported constant moderate to severe lower back pain with occasional numbness of the feet. He also reported flare ups manifested as acute low back pain on several occasions. Precipitating factors for flare ups included driving, being a passenger in a vehicle, bending, standing, and sitting. Alleviating factors included medication, Bengay patches, and liniments. The Veteran reportedly could not walk a lot and fell two or three times in the past year. A functional assessment showed that he could independently do activities of daily living, such as eating, grooming, bathing, toileting, and dressing. At times, his wife would comb him and he bathed with difficulty and pain. He could no longer play baseball or basketball, scuba dive, run “a lot,” mop, or sweep. He could drive a car for five minutes without problems. The Veteran had worked as an industrial mechanic for 20 years and was employed as of August 5, 1999. In an October 2008 VA examination, the Veteran reported cervical and low back pain, numbness, leg or foot weakness, and unsteadiness. The history of his symptoms included fatigue, decreased motion, stiffness, weakness, spasms, and pain. His low back pain was severe and radiated to his right leg. The Veteran had severe flare ups that were precipitated by mopping, sweeping, gardening, washing the car, and trimming the yard. His reported functional impairment during flare ups was that he could not do anything. The examiner noted that the Veteran had muscle spasm in the thoracic sacrospinalis spine. The examiner found that the Veteran’s cervical and low back issues mildly affected bathing, dressing, and grooming, moderately affected shopping and toileting, severely affected traveling and chores, and prevented exercise, sports, and recreation. It was noted that the Veteran had worked for 20 or 21 years as an industrial mechanic and that he retired due to a low back disability by the SSA. Post-service private treatment records showed that he had significant pain involving the whole back with radiation to the extremities. He also had spasm and tenderness in the lumbosacral region. Based on the foregoing evidence of record, the Board finds that resolving all reasonable doubt in favor of the Veteran, a TDIU is warranted from October 29, 2004 to October 15, 2008. The Board finds that the following evidence is the most probative in support of the Veteran’s claim for a TDIU. In particular, the Board places significant weight upon: (1) findings of the January 2005 VA examination that due to the Veteran’s lumbar spine disability he could no longer play sports, run “a lot,” mop, sweep, or drive a car for five minutes and suffered flare ups precipitated by driving, being a passenger in a vehicle, bending, standing, and sitting; (2) findings of the October 2008 VA examination that his cervical and low back issues severely affected traveling and chores and prevented exercise, sports, and recreation, and that he suffered from severe flare ups precipitated by mopping, sweeping, gardening, washing the car, and trimming the yard; (3) findings by Dr. Marchena and Dr. Santiago that the Veteran’s severe psychiatric symptoms, to include death wishes, poor concentration, low energy level, sadness, weeping, and irritability, his ability to obtain and maintain employment was significantly limited; (4) observations of the October 2008 VA examiner that the Veteran had unusual psychomotor activity, impaired insight, an angry outburst in which the Veteran yelled obscenities at the examiner, and impaired memory; and (5) evidence showing that the Veteran had a limited education and work experience as a mechanic with no work experience in an office-type employment. While the March 2005 VA psychiatric examination did not show that the Veteran had impaired insight or angry outbursts, the private assessments prior to and the VA examination conducted after this examination shows that the Veteran did have such issues. (Continued on the next page)   Given the Veteran’s limited education, his limited work history, and significant functional limitations due to his service-connected disabilities, the Board finds that the evidence is at least in equipoise that the Veteran’s service-connected disabilities preclude him from securing and following substantially gainful employment from October 29, 2004 to October 15, 2008. Therefore, resolving all reasonable doubt in favor of the Veteran, his claim for a TDIU is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.