Citation Nr: 21024409 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 20-00 141A DATE: April 22, 2021 ORDER The December 10, 2020 Board decision that denied entitlement to an evaluation in excess of 70 percent for posttraumatic disorder (PTSD) and persistent depressive disorder (dysthymia) is vacated. Entitlement to an evaluation in excess of 70 percent for PTSD and dysthymia is denied. Entitlement to a total disability individual unemployability (TDIU) is granted from May 21, 2017, but no earlier. FINDINGS OF FACT 1. A Motion for Extension received on November 20, 2020 was still open when the Board issued its December 10, 2020 decision denying entitlement to an evaluation in excess of 70 percent for PTSD and dysthymia. 2. At no time during the appeal period did the Veteran’s PTSD and dysthymia result in total occupational and social impairment. 3. The Veteran’s last day of substantially gainful employment was May 21, 2017. 4. The evidence establishes that the Veteran was precluded from obtaining and maintaining substantially gainful employment as a result of his service-connected disabilities from May 21, 2017. CONCLUSIONS OF LAW 1. The December 10, 2020 Board decision that denied entitlement to an evaluation in excess of 70 percent for PTSD and dysthymia constituted a denial of due process and is vacated. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 2. The criteria for entitlement to an evaluation in excess of 70 percent for PTSD and dysthymia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to a TDIU from May 21, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1984 to April 1992, including service in Southwest Asia. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision, dated October 2018, issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its decision, the RO continued the 70 percent evaluation of PTSD with depressive disorder not otherwise specified; dysthymic disorder. The Veteran timely appealed. In May 2020 the Board issued a decision in this appeal. However, in August 2020 the Board vacated that decision on the grounds of a due process error; specifically, that there were pending Privacy Act Requests at the time the May 2020 decision was issued. As the Privacy Act Requests were fulfilled on July 1, 2020, the due process error has been corrected. The representative made a motion for extension of time which was granted. A new motion for extension was received on November 20, 2020 requesting 90 additional days to submit evidence. The Board herein grants the November 2020 motion and notes that 90 days have passed since its receipt. In February 2021, the Veteran’s attorney submitted additional evidence and stated: “This is our final submission in support of the appeal and we waive any remaining time to send additional evidence or arguments. Please forward the case to the Board for a decision.” As the 90 days have passed and the Veteran has waived any additional time, the Board will proceed with adjudication. ORDER TO VACATE The Board may vacate an appellate decision at any time upon request of the appellant or his representative, or on the Board’s own motion, when an appellant has been denied due process of law. 38 U.S.C. § 7104; 38 C.F.R. § 20.904. A Motion for Extension received on November 20, 2020 was still open when the Board issued its December 10, 2020 decision denying entitlement to an evaluation in excess of 70 percent for PTSD and dysthymia. Unfortunately, it was not uploaded to the electronic file from the mail portal before the December 2020 decision was issued and so the undersigned was not aware of the Motion at the time of signing. In a January 2021 Motion to Vacate, the Veteran’s attorney correctly indicated that this ruling did not comply with due process requirements. Therefore, the Board finds that vacatur of the December 10, 2020 decision is necessary and the Motion is granted. INCREASED RATING A disability rating is determined by applying VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 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 Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as “staged ratings,” - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The schedule for rating psychiatric disabilities, to include PTSD and other acquired psychiatric disorder, provide that 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 worklike setting); inability to establish and maintain effective relationships. Id. 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; 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 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. 38 C.F.R. § 4.126. The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 1. Entitlement to an evaluation in excess of 70 percent for PTSD and dysthymia The Veteran’s PTSD is rated as 70 percent disabling from February 11, 2012 under Diagnostic Code 9411. The Veteran seeks a higher rating. His claim for an increased rating was received on August 29, 2018, which marks the beginning of the period on appeal. Having reviewed the evidentiary record thoroughly, the Board does not find any evidence which would warrant the assignment of an evaluation in excess of a 70 percent disability rating. 38 C.F.R. § 4.7. The Board finds that the severity, duration, and frequency of PTSD symptoms during the appeal period result in social impairment with deficiencies in the areas of family relations and mood, but do not rise to the level of total social and occupational impairment. The Board may consider treatment records dated within the one-year “lookback” period before the claim was filed in August 2018 in order to assess the disability picture at the time the claim was filed. An April 2018 mental health note recorded that the Veteran claimed his mood was up and down and he felt depressed a few times a week as well as irritability. He stated that he had difficulty with sleep and continued to endorse some nightmares, flashbacks, and intrusive thoughts. He denied any suicidal or homicidal ideations or any audio or visual hallucinations. He stated that his dreams were vivid and often had anxiety and hypervigilance during the day. His symptoms included depression, anxiety, nightmares, irritability, and chronic pain. He denied any previous history of suicide attempts, psychiatric hospitalizations, or previous history of violence. He was also alert, and oriented to person, place, time, and situation. In a June 2018 mental health note, the Veteran reported that he had a depressed mood and said that he “did not want to do anything.” He reported memories of things from the war that do not go away. He struggled with concentration. He had irritability and was short-tempered. He felt socially isolated, anxiety, and sleep problems and nightmares. He denied obsessions, compulsions, paranoia, and psychosis. He denied suicidal and homicidal ideations. He was oriented on all spheres. The Veteran was provided a PTSD assessment in August 2018 in which he reported symptoms including depression, trouble sleeping, and trouble concentrating. He denied any thoughts that he would be better off dead or of hurting himself in some way. Another August 2018 mental health note wrote that the Veteran had outbursts, a short temper, and intrusive thoughts. He was hyper alert and not trusting of others. His wife reported that he jerked around in his sleep. However, he was not aware of having trauma-related nightmares. He denied suicidal or homicidal ideations and audio or visual hallucinations. Symptoms included sleep disturbance, guilt about “killing people,” change in energy level, depressed mood, change in appetite, psychomotor changes, anxiety, and irritability. He was oriented to time and place. A September 2018 mental health note reported that he was appropriately groomed and dressed. There was no evidence of auditory, visual, or tactile hallucinations, delusions, paranoia, or psychoses. He denied any self-directed violence or homicidal ideations. He saw disturbing images and had disturbing thoughts which caused disturbing emotions that hindered his sleep. A September 2018 mental health note stated that the Veteran was still having nightmares about five nights a week and his sleep was still poor (four hours a night). He said that he was still having some angry episodes and got anxious. He denied suicidal and homicidal ideation and auditory or visual hallucinations. He was well-dressed and well-nourished, with no acute distress. His behavior was calm and his speech was normal. His mood was noted as “in pain, but mentally okay today.” His affect was minimally blunted. His thought process was linear. His insight was fair and his judgment was good. He was alert and oriented. A September 2018 PTSD VA examination 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. He continued to reside in the same home with his wife of 18 years. His marriage was “average,” and stated that his PTSD interferes, due to his anger. He had good relationships with his daughters and stepchildren. He did not speak to his siblings but saw his mother every couple of months. He reported that he had difficulty in crowds and in social situations, due to hypervigilance. With regards to occupational history, the Veteran worked full-time as a truck driver for a FedEx contractor until May 2017, after which he was medically and mentally disqualified for his position following a knee replacement surgery and complications afterwards. He had worked purposefully in jobs wherein he did not interact much with others, due to problems getting along with others. He had not worked since May 2017. He received outpatient mental health treatment at the local VA, including individual therapy and psychiatric medication management. He had never been psychiatrically hospitalized. He continued to have difficulty sleeping in particular, despite having tried different medications to address this. His symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. In an October 2018 PTSD VA examination, the examiner concluded that the occupational and social impairment was 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. Symptoms included depressed mood, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, and chronic sleep impairment. In a November 2018 psychiatry note, the Veteran denied suicidal and homicidal ideations. He had no auditory or visual hallucinations. His nightmares were about the same frequency. Sleep was still a problem with getting to sleep around four to six a.m. He was using a CPAP for sleep apnea. He was well-dressed and well-nourished, with no acute distress. His behavior was calm and his speech was normal. His mood was “peachy,” and his affect was full range. His thought process was linear. His insight and judgment were good. He was alert and oriented. In a November 2018 mental health note, the Veteran was cooperative, and his affect was consistent with stated mood and appropriate to conversation. His judgment and insight were appropriate. He was appropriately groomed and dressed. There was no evidence of auditory or visual hallucinations, delusions, paranoia, or psychoses. His speech was normal. He reported no current thoughts of self-directed violence or homicidal ideation. In a November 2018 social work note, the Veteran was cooperative, and his affect was consistent with stated mood and appropriate to conversation. His judgment and insight were good. He was appropriately groomed and dressed. There was no evidence of auditory or visual hallucinations, delusions, paranoia, or psychoses. His speech was normal. He denied self-directed violence or homicidal ideation. In multiple January 2019 mental health note and psychiatry notes, the Veteran was cooperative and his affect was consistent with his stated mood and appropriate to conversation. His insight and judgment were good. He was appropriately groomed and dressed. He denied auditory or visual hallucinations, delusions, paranoia, or psychoses. His speech was normal. He denied self-directed violence, suicidal and homicidal ideation. His nightmares were the same. He was and well-nourished with no acute distress. His behavior was calm. At one visit, his mood was “tired,” and his affect was full range. His thought process was linear. He was alert and oriented. In a January 2019 mental health note, the physician noted that one of the Veteran’s strengths/abilities was being capable of maintaining stable relationships. At the time, he was married to his second wife and had two daughters. In a March 2019 mental health and psychiatry notes, the Veteran was alert and oriented and denied suicidal and homicidal ideations. He had no auditory or visual hallucinations. He had nightmares, but “not like they were,” three times a week. He slept about six to eight hours per night, just not when he wanted it to be. He was well-dressed and well-nourished with no acute distress. His behavior was calm and his speech was normal. His mood was “peachy,” and his affect was full range. His thought processes were linear. His insight and judgment were good. In an April 2019 mental health note, the Veteran denied suicidal and homicidal ideation and further stated that he had never had suicidal or homicidal ideation nor any previous suicidal or homicidal behaviors or attempts. He was alert and oriented with euthymic mood. His affect was “okay, I didn’t sleep last night.” His thoughts were logical and goal directed. He denied auditory or visual hallucinations. He had continued insomnia and intrusive thoughts during periods of silence when he is not “keeping busy.” His insight and operational judgment were good. In a May 2019 mental health note, the Veteran was alert, oriented, pleasant, and cooperative. His affect was “good today,” and his mood was euthymic. His thoughts were logical and goal directed. He denied suicidal or homicidal ideation. He denied auditory or visual hallucinations. His insight and operational judgment were good. In a May 2019 mental health note, the Veteran was alert and oriented. His affect was “frustrated.” His mood was dysphoric and his thoughts were logical and goal directed. He denied suicidal or homicidal ideation. He denied auditory or visual hallucinations. He admitted to continued sleep disturbance, intrusive thoughts, nightmares, irritability, and agitation. His insight and operational judgment were good. In another May 2019 mental health note, the Veteran was cooperative and his affect was consistent with stated mood and appropriate to conversation. His judgment and insight were good. His was appropriately dressed and groomed. There was no evidence of auditory or visual hallucinations, delusions, paranoia, or psychoses. His speech was normal. In a June 2019 treatment notes, the Veteran said that his mental health symptoms were about the same. He denied suicidal and homicidal ideation. He denied auditory or visual hallucinations. He was well-dressed and well-nourished with no acute distress. His behavior was calm and his speech was normal. His mood was noted as “the depression is there.” His affect was minimally blunted. His thought process was linear. His insight and judgment were good and he was alert and oriented. An August 2019 VA mental health treatment note listed two of the Veteran’s strengths as “capable of maintaining stable relationship” and “has supportive family and/or friends.” In an August 2019 psychiatry note, the Veteran said that his depression was better since being on medication. He said that he does not have true nightmares while awake, but can have intrusive thoughts and memories. He denied suicidal and homicidal ideation. He denied auditory and visual hallucinations. He was well-dressed and well-nourished. He had no acute distress and fair hygiene. His behavior was calm. His speech was normal and his mood was “today’s pretty good.” His affect was full range, and his thought processes were linear and organized. He denied suicidal and homicidal ideation. He denied auditory or visual hallucinations and paranoia. His insight and judgment were fair. An August 2019 mental status note stated that the Veteran was alert and oriented. His mood was “a little shaky.” His affect was broad and his thoughts were logical and goal directed. He had no delusions or auditory or visual hallucinations. His insight and judgment were good. In another August 2019 mental status note, the Veteran was alert and oriented. He was calm and cooperative, and his affect was “just peachy.” His mood was euthymic and his thoughts were logical and goal directed. He denied auditory or visual hallucinations. He had no delusions. He denied suicidal and homicidal ideation. His insight and judgment were good. A September 2019 mental health note reported that the Veteran was alert, oriented, calm, and cooperative. His affect was “hard to do this work but worth it.” His mood was euthymic, and his thoughts were logical and goal directed. He denied suicidal or homicidal ideation. He denied auditory or visual hallucinations. His insight and judgment were good. In another September 2019 mental status note, the Veteran reported feeling “like a weight has been lifted…I feel lighter.” His affect was bright and mood was euthymic. His thoughts were logical and goal directed. He denied suicidal and homicidal ideation. He denied auditory or visual hallucinations. His insight and operational judgment were good. Another September 2019 mental health note showed the Veteran’s affect had improved and was bright. His mood was euthymic. An October 2019 mental health note reported that the Veteran was alert and oriented, calm, and cooperative. His affect was “good.” His mood was euthymic and thoughts were logical and goal directed. He had no auditory or visual hallucinations or delusions. He denied suicidal and homicidal ideation. His insight and operational judgment appeared good. A November 2019 treatment record noted no suicidal or homicidal ideation or auditory or visual hallucinations. The Veteran had nightmares about twice in the past month. His sleep was still poor and fragmented. He was well dressed and well-nourished with no apparent distress; he was casually dressed. His behavior was calm and pleasant with good eye contact. He had normal speech, and his mood was generally euthymic. His affect was full range. His thought process was linear and organized. His insight and judgment were fair. A November 2019 suicide screen yielded negative results. Another November 2019 treatment record noted that the Veteran was alert and oriented to all spheres. He had a pleasant mood and affect with good eye contact. His speech was normal in rate, volume, and tone. He was clean and neatly dressed, appropriate for the weather and situation. He denied suicidal or homicidal ideation and hallucinations. A November 2019 mental health note reported that the Veteran was alert, oriented, pleasant, and cooperative. His affect was “tired…still not sleeping well.” His mood was euthymic, and thoughts were logical and goal directed. He denied suicidal or homicidal ideation or any auditory or visual hallucinations. His insight and operational judgment appeared good. A December 2019 mental health note reported that the Veteran was alert, oriented, pleasant, and cooperative. His affect was “pretty good.” His mood was euthymic, and his thoughts were logical and goal directed. He denied suicidal or homicidal ideation or any auditory or visual hallucinations. His insight and operational judgment appeared good. A January 2020 mental health note reported that the Veteran was alert, oriented, pleasant, and cooperative. His affect was “better now that the holidays are over.” His mood was euthymic, and his thoughts were logical and goal directed. He denied suicidal or homicidal ideation or any auditory or visual hallucinations. His insight and operational judgment appeared good. He reported increased depression over the holidays but attributed that to having expectations that were unrealistic. Another January 2020 mental health note showed that the Veteran was alert, oriented, pleasant, and cooperative. His affect was good, and his mood was euthymic. His thoughts were logical and goal directed. He denied suicidal or homicidal ideation or any auditory or visual hallucinations. His insight and operational judgment appeared good. In a January 2020 mental health note, Veteran reported that he experienced avoiding memories, thoughts, or feelings related to the stressful experience a little bit. He did not experience taking too many risks or doing things that could cause you harm at all. He experienced repeated, disturbing, and unwanted memories of the stressful experience a little bit. He felt moderately distant or cut off from other people. After being administered the PCL-5 test, the Veteran’s score was 21 out of 80, with 80 being the most severe PTSD symptoms. A January 2020 mental health note showed that the Veteran was alert, oriented, pleasant, and cooperative. His affect was good, and his mood was euthymic. His thoughts were logical and goal directed. He denied suicidal or homicidal ideation or any auditory or visual hallucinations. His insight and operational judgment appeared good. He reported continued symptoms of depression. A mental health note in February 2020 noted that the Veteran was alert, oriented, pleasant, and cooperative. His affect was good, and his mood was euthymic. His thoughts were logical and goal directed. He denied suicidal or homicidal ideation or any auditory or visual hallucinations. His insight and operational judgment appeared good. He reported continued symptoms of depression. Another mental health note dated February 2020 showed that the Veteran was alert, oriented, pleasant, and cooperative. His affect was “pretty good, a little tired.” His mood was euthymic, and his thoughts were logical and goal directed. He denied suicidal or homicidal ideation or any auditory or visual hallucinations. His insight and operational judgment appeared good. A February 2020 mental health note noted that the Veteran was alert, oriented, pleasant, and cooperative. His affect was “good, it’s been a stressful week.” His mood was euthymic, and thoughts were logical and goal directed. He denied suicidal or homicidal ideation or any auditory or visual hallucinations. His insight and operational judgment appeared good. He discussed interactions he had with friends and family members, specifically related to “standing up for myself with confronting them with how they have hurt me in the past.” He reported some lucid dreaming, “nightmares,” related to “someone trying to kill me.” In a February 2020 mental health note, Veteran reported that he experienced avoiding memories, thoughts, or feelings related to the stressful experience quite a bit. He experienced taking too many risks or doing things that could cause him harm a little bit. He moderately experienced repeated, disturbing, and unwanted memories of the stressful experiences. He felt distant or cut off from other people quite a bit. After being administered the PCL-5 test, the Veteran’s score was 43 out of 80, with 80 being the most severe PTSD symptoms. A mental health note dated February 2020 noted that the Veteran was alert and oriented to all spheres. He denied any suicidal or homicidal ideation and any auditory or visual hallucinations. He had a pleasant mood and was co-operative with the writer and had good eye contact. His speech was normal in rate, volume, and tone. He was clean and neatly dressed, appropriate for the weather and situation. In another February 2020 treatment record, the Veteran noted that his medication helped him stay asleep, but he still had trouble getting to sleep sometimes. His depression had been hitting more and there had been more nightmares, about one to two times per week. He had night sweats. He said that it did not take long for him to realize when a nightmare was just a dream. He said that he had been having family stress. He thought his depression may be related to household stress. He had no suicidal or homicidal ideations. He also had no auditory or visual hallucinations. A February 2020 mental health note reported that the Veteran was alert, oriented, pleasant, and cooperative. His affect was “still not sleeping well... they put me on a different medication.” His mood was euthymic, and his thoughts were logical and goal directed. He denied suicidal or homicidal ideation or any auditory or visual hallucinations. His insight and operational judgment appeared good. A mental health note dated March 2020 wrote that the Veteran was alert, oriented, pleasant, and cooperative. His affect was “really good,” and his mood was euthymic. His thoughts were logical and goal direct. He denied suicidal or homicidal ideation or any auditory or visual hallucinations. His insight and operational judgment appeared good. He reported “having more interest in doing things.” A March 2020 suicide screen yielded negative results. A March 2020 treatment note recorded that the Veteran was alert and oriented. He had normal affect and speech. He responded appropriately to verbal commands. His mood was normal. There was no evidence of psychosis. An April 2020 treatment note wrote that the Veteran’s medication “seems to be working” for his mood. It still helped him stay asleep. He had a few nightmares usually about him getting shot. There was no suicidal or homicidal ideation. His mood was euthymic. In a July 2020 mental health note, the physician wrote that the Veteran said he did feel a bit more motivation since increasing his medication. He said that the depression is still there somewhat. He denied suicidal or homicidal ideation. His behavior was calm and cooperative. His speech was normal, and his mood was depressed. His affect sounded a bit blunted. His thought process was linear. He had no auditory or visual hallucinations or delusions or paranoia. His insight and judgment were good. In July 2020 primary care notes the Veteran denied any worries or symptoms of PTSD, and there was no change in affect, and no suicidal or homicidal ideation. He was coping well. A suicide screen performed in August 2020 yielded negative results. In October 2020, the Veteran was alert and oriented to all spheres. He had a pleasant mood and affect and his speech was normal. He was clean and neatly dressed. He denied suicidal and homicidal ideation. He denied any hallucinations. In another October 2020 medical treatment record, the Veteran reported his mood was down. His depression was “still out of control, lack of motivation.” He was depressed every day. He denied suicidal and homicidal ideation. He denied auditory or visual hallucinations. He did not have nightmares. He was casually depressed and was calm and cooperative. His speech was normal. His mood was “down” and his affect was full. His thought process was linear and his insight and judgment were good. The Veteran’s wife provided a lay statement in November 2020. She wrote, [The Veteran] is my husband and we have known each other and been married since 1999. I’ve watched him struggle with memory, motivation, mood swings, frustration, stress, anxiety, [and] hygiene…These issues affect him daily. He struggles with the following: He has short term memory issues. I give him his medication every night. If I didn’t he wouldn’t remember to take them. There are times when he will ask me the same question he asked not long before. His memory has progressively gotten worse within the last year or so. He lacks motivation. He used to enjoy fishing and things like that, but he has pain and can’t do anything like that anymore. We used to walk and keep up the yard. If we go out now, he might cut a branch or two but that is it. His get up and go is gone. He is not motivated and that is part of his depression. He struggles with mood swings and he gets frustrated. When we first married, he wasn’t like that. It seemed like he was worse after 9/11. It really kicked in his PTSD. He has nightmares and cannot sleep. He has medication that works pretty well but he still has trouble sleeping. He has jumped and rolled out of bed due to nightmares. It scares me. He told me one time that he was running in his sleep. He gets tired during the day due to lack of sleep. Yesterday, when I came back from work, he was in the same spot where I left him. He can stay in bed for 12 hours at a time. He never talked about what happened over there when he was in the service, but I didn’t ask. He gets stressed, overwhelmed and anxious. We have two children together and over the last three to four years, they haven’t wanted to be around much. They would get on his nerves I guess, so they would stay in their rooms…He is confrontational and will lash out when he is upset or stressed. He will understand later that he shouldn’t have done that. A lot of times, if he realizes he is getting upset, he will go into another room and close the door. If company is over and getting on his nerves, that’s what he does. He tries to stay up on his hygiene but there are times when he goes one week without a bath. I understand but after a while I tell him he will feel better if he showers and he does. He grows his hair out at times as well. We are home a lot. Being around a lot of people causes him to have anxiety. If he drops something or if I gasp when he is driving, it scares him…He hasn’t flipped out on people, but I think that is one of the reasons why he avoids crowds. We go to the grocery store about every two weeks…He still drives but traffic bothers him…If he does feel anxiety coming on, he will let me drive home…He doesn’t work now and hasn’t for three years or so. He was a truck driver. His knee pain caused him limitations. He had a hard time getting in and out of the truck. It got to the point where he couldn’t get in and out of the trucks anymore and it scared him. It wasn’t safe…The knee pain made it hard for him to get around and do things. He would drive eight hours at a time and riding that long hurt him as well. We argued more when he was working. He wasn’t able to take his PTSD medication due to his line of work. He wasn’t able to go to his group sessions because of work either…He continues to struggle with memory, mood swings, frustration, stress, anxiety, hygiene, and knee pain. These issues affect him daily. They caused him to not be able to work and they prevent him from going back as well. In a November 2020 medical treatment record, the Veteran was alert and oriented in all spheres. He had a pleasant mood and affect. His speech was normal. He was clean and neatly dressed. He denied suicidal and homicidal ideation. He also denied auditory or visual hallucinations. In another November 2020 medical treatment record, the Veteran reported that his mood was depressed. He denied suicidal ideation but said that he had had passive thoughts in the past with no plans. He did not have nightmares but sometimes had shaking and night sweats. He was casually dressed. He was calm and cooperative and his speech was normal. His mood was depressed and his affect was blunted. His thought process was linear. His insight and judgment were good. In a December 2020 PTSD Disability Benefits Questionnaire (DBQ), the examiner noted that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. At the time, the Veteran had been married for 21 years and had two children and two stepchildren. He last worked in May 2017. Symptoms that he experienced included depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, persistent delusions or hallucinations, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner then included a report with additional remarks. The Veteran reported having some difficulties completing activities of daily living. He reported having “no desire to do anything” which prevents him from completing most tasks. He reported some difficulty completing basic hygiene tasks. He was cooperative and appeared disheveled. His speech was normal. He appeared depressed, with restricted range of affect. His thought process was logical and linear, with no abnormalities. His attention, concentration, memory, insight, and judgment were adequate. She noted that the Veteran had nightmares at least three times per week, which caused him to lose sleep and feel tired during the day. He also experienced frequent flashbacks in which he felt the same as he did at the time of the trauma. He suffered from intrusive thoughts on a daily basis. As a result of the trauma he experienced, he developed avoidant behaviors. He avoided going anywhere with crowds and acknowledged feeling detached from others. He did not like to have conversations about PTSD with anyone because he believed they did not understand. He no longer enjoyed formerly pleasurable activities, such as backpacking, hunting, gardening, and other outdoor activities. He had also found himself sleeping too much lately, sometimes as much as 14 hours per night. He had experienced some improvement since taking medication but stated that prior to this he would get angry often, “I would get angry about people breathing, just everything, it didn’t have to make any sense for me to get mad.” When angry, he would become verbally aggressive. His concentration was poor, and he typically had to read something three times to achieve comprehension. He acknowledged having a significant problem with hypervigilance and stated he was constantly looking out of windows. He also startled easily. He expressed feeling guilt and worthlessness and described them as “just a daily part of who I am.” His mood was typically depressed, and he had difficulty with experiencing any positive emotions. He struggled to maintain any sort of relationships in his life. He was noted to be slightly irritable during the interview, consistent with his report of frequent depression/irritability. Even when not sleeping, he usually spent at least 16 hours in bed. In a January 2021 medical treatment record, the Veteran stated that he had passive suicidal thoughts, but no plan to harm himself or others. He did not have suicidal or homicidal ideation at the time. He did not have auditory or visual hallucinations. He was casually dressed and was calm and cooperative. His speech was normal. His mood was generally euthymic, and he expressed some depression. His affect was minimally blunted and was at baseline. His thought processes were linear. His insight and judgment were good. In another January 2021 medical treatment record, the Veteran noted that he had been fighting his depression for years and it was only getting worse. He typically woke up in the afternoon. Sleep was the only escape from the depression. He had no friends, no social life, and spent his days in bed. After review of the foregoing evidence, the Veteran has not demonstrated symptoms of the frequency, severity, or duration consistent with a 100 percent rating. Specifically, there is no evidence which documents symptoms of or similar to: gross impairment in thought process or communication; grossly inappropriate behavior; persistent danger of hurting himself or others; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. On the contrary, numerous VA treatment records during the appeal period report he was fully oriented and behaved appropriately. In all of his VA examinations, the Veteran denied thoughts of harming others. Furthermore, all of the VA examinations during the appeal period reported that the Veteran denied any suicidal ideations. While the Veteran reported that he experienced passive suicidal ideation in a January 2021 treatment record, this was a single instance and does not rise to the level of presenting a persistent danger of self-harm as articulated in the 100 percent rating criteria. Thus, the Veteran’s social and occupational impairment has not manifested in a persistent danger of self-harm consistent with a 100 percent rating. The December 2020 examiner noted that the Veteran experienced persistent delusions or hallucinations and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. These symptoms are provided as examples of the level of impairment consistent with 100 percent in the rating criteria. However, there are a number of other medical treatment records in which the Veteran denied persistent delusions or hallucinations and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. As both of these symptoms were a single instance, with no apparent residual effects, the frequency, duration, and severity of these symptoms alone are not sufficient to produce total social and occupational impairment that is consistent with a 100 percent disability rating. The Board does not find the total social impairment necessary for a 100 percent rating. The Veteran has good relationships with his children and stepchildren, remains married to and living with his wife of at least 21 years, and sees his mother occasionally. While his PTSD interferes in his marriage and he isolates from others, and his children may not enjoy being around him as much, a serious deficit in social functioning (i.e., an inability to establish and maintain effective relationships) is reflected in the assignment of a 70 percent evaluation. Thus, his current rating contemplates his level of social impairment and there is no indication that the Veteran’s PTSD rendered him totally socially impaired. The Veteran’s PTSD symptoms do not produce total occupational and social impairment. The September 2018 and December 2020 VA examiners opined that the Veteran’s level of occupational and social functioning had “deficiencies in most areas,” the level contemplated by his current 70 percent rating. After a thorough review of the evidence, the Board finds this assessment is supported by the record. The frequency, severity, and duration of the Veteran’s symptoms are contemplated by a 70 percent disability rating, and his request for a schedular rating higher than 70 percent for service-connected PTSD is denied. U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Entitlement to a TDIU A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of their service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated as at least 60-percent disabling, and if there are two or more disabilities, at least one disability must be rated as at least 40-percent disabling and there must be sufficient additional disability to bring the combined rating to at least 70 percent. Id. Service connection is currently in effect for PTSD and dysthymia at 70 percent disabling effective February 11, 2012. Service connection is also in effect for a left knee disability rated 60 percent disabling effective July 1, 2018, tinnitus rated 10 percent disabling effective May 9, 2018, and four linear surgical scars on the left knee rated as noncompensable effective August 16, 2016. The Veteran has had one disability rated as at least 60 percent disabling from February 11, 2012. Therefore, the Veteran meets the schedular requirements for entitlement to a TDIU from February 11, 2012. Entitlement to a TDIU must be based solely on the impact of the Veteran’s service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. While the regulations do not provide a definition of “substantially gainful employment,” in Faust v. West, 13 Vet. App. 342 (2000), the Court of Appeals for Veterans Claims (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 the Veteran actually works and without regard to the Veteran’s earned annual income.” Requiring a Veteran to prove that he is totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word “substantially” suggests intent to impart flexibility into a determination of the Veteran’s overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion. 38 C.F.R. § 4.16(b). However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. In the Application for Increased Compensation Based on Unemployability dated October 2020, the Veteran stated that he sought entitlement to TDIU due to symptoms of all of his service-connected disabilities. The highest level of education the Veteran has is a high school degree. He also completed truck driver school. He wrote that the last time he worked full time was on May 21, 2017, the same date he became too disabled to work. The disability rating in effect during the appeal period of 70 percent reflects occupational impairment due to his service-connected psychiatric disability. The Veteran provided a lay statement in October 2020. He wrote, I last worked in 2017 as a truck driver…I had anxiety while working and was short tempered. When I was frustrated or upset, I was more confrontational and would lash out. I wasn’t around a lot of people at this job though. I was driving a truck at night by myself. I felt tired and fatigued, especially with the sleep issues I have. I have insomnia due to my PTSD. I have to sleep with a CPAP every night. I felt stressed and overwhelmed along with my short temper. I am on medication that helps me now, but I couldn’t take them while I was working because of the job. I wasn’t allowed to take them. Now, I can, and it does help. I lacked motivation while working. I had trouble focusing and concentrating as well. There were times, one time especially, I was driving down the road at night and I didn’t recognize where I was at. It was scary… My knee would hurt sitting in the same spot for a long time. It was an everyday thing. The end of my ability to work was when I had my knee replacement surgery. There was a change in my pain combined with my mental health issues. The pain would cause me to get more upset and frustrated especially with the PTSD. A yearly physical was required…for my job that I had to take but I was no longer able to qualify for it. Prior to my job…I was working…for five years as a truck driver. My knee gave me trouble while I was working there as well. I had to take breaks and I was able to take them when I needed to. The lack of motivation was there as well. The stress level at this job was higher though. There were times I’d get frustrated and upset when dealing with stupid people. I had more interaction with co-workers on the phone but not in person. It was still hard to deal with them over the phone though. I struggled with anxiety. I was having issues sleeping and it made it hard to focus and concentrate at work. Before that, I was working…for three months as a Maintenance Manager. I was on my feet constantly and my knee constantly hurt because of it. Using the stairs made the pain worse. I was upset and frustrated due to the pain. It affected my motivation for sure. I was depressed due to the pain and limitations it caused. I had anxiety with co-workers as well. I was tired and fatigued daily due to lack of sleep. It was more prevalent at this job because I didn’t have my CPAP yet. I was stressed and overwhelmed. The lack of motivation and the other issues I was struggling with caused me to get fired from this job. The issues I struggle with and have written about above caused me to not be able to continue working. They have also kept me from being able to work since then. In the December 2020 PTSD DBQ, the examiner provided the following regarding the occupational effects of PTSD: [The Veteran] has been service connected for PTSD and continues to suffer from symptoms that impact his employability. Re-experiencing symptoms would reduce his productivity, due to his inability to focus on work tasks. They could also contribute to increased work absences. Avoidance symptoms would interfere with [his] ability to interact appropriately with the environment and peers in a workplace setting. Arousal and reactivity symptoms would make [him] more reactive to normal workplace stressors and interpersonal conflicts. Finally, negative thoughts and feelings would contribute to ongoing depressive symptoms would decrease his work productivity. She concluded that, “His mental health disorders more likely than not prevent him from maintaining substantially gainful employment since at least February 11, 2012. This condition impacts his employability due to impairments in interpersonal relations, low motivation, mood dysregulation, and poor sleep.” Regulations place responsibility for the ultimate TDIU determination on the Board and not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board finds the opinion of the December 2020 DBQ examiner is both persuasive and probative evidence that the Veteran is unable to obtain and maintain substantially gainful employment due to his service-connected knee and psychiatric disabilities. While the December 2020 examiner opined that the Veteran became unemployable from at least February 11, 2012, the Veteran reported in his Form 21-8940 that the last date he worked full time was on May 21, 2017. In a February 2021 brief the Veteran’s attorney argued that the had not worked since June 1, 2004. However, this contradicts the Veteran’s own consistent lay evidence and there is no evidence in the record supporting this statement. In his Form 21-8940, the Veteran reported that he worked as a truck driver for three different companies from December 7, 2007 to May 21, 2017. There is no indication that his earnings constituted marginal employment and he has not indicated that his employment during this time was sheltered. Based on the totality of the Veteran’s service-connected disabilities, the Board finds the evidence establishes that his service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment from May 21, 2017. A TDIU is granted from that date. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.