Citation Nr: 21027932 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 12-36 109 DATE: May 7, 2021 ORDER Entitlement to an initial rating in excess of 20 percent prior to June 24, 2019, and an initial rating in excess of 40 percent thereafter, for lumbar spine degenerative disc disease with intervertebral disc syndrome (IVDS) is dismissed. Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) for the appeal period prior to April 8, 2014, is granted. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities from February 3, 2010, to April 7, 2014, is granted. FINDINGS OF FACT 1. In April 2021 written correspondence, the Veteran's representative, on the Veteran's behalf, withdrew the Veteran's initial increased rating claims for his lumbar spine degenerative disc disease with IVDS. 2. For the appeal period prior to April 8, 2014, the evidence is in equipoise as to whether the Veteran's service-connected PTSD manifested as occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, and mood. 3. For the appeal period prior to April 8, 2014, the evidence is at least in equipoise as to whether the Veteran was unable to obtain and maintain substantially gainful employment consistent with his educational and occupational experiences as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal concerning entitlement to an initial rating in excess of 20 percent prior to June 24, 2019, and an initial rating in excess of 40 percent thereafter, for lumbar spine degenerative disc disease with IVDS have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for entitlement to an initial rating of 70 percent, but no higher, for the appeal period prior to April 8, 2014, have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411. 3. Resolving all reasonable doubt in favor of the Veteran, from February 3, 2010, to April 7, 2014, the criteria for entitlement to a TDIU due to service-connected disabilities have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1967 to June 1969, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2010 and June 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. By way of background, in a February 2015 decision, the Board denied the Veteran's initial increased rating claim for his PTSD and remanded his TDIU claim and initial increased rating claim for his service-connected lumbar spine degenerative disc disease. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In February 2016, the Court granted a Joint Motion for Partial Remand (JMPR) which vacated and remanded the February 2015 Board decision insofar as it denied entitlement to an initial increased rating for PTSD. Thereafter, in an August 2016 decision, the Board denied the Veteran's TDIU claim as well as his initial increased rating claims for PTSD and lumbar spine degenerative disc disease. The Veteran appealed that decision to the Court and in January 2018, the Court issued a Memorandum decision, which vacated and remanded the August 2016 Board's decision denying entitlement to an initial increased rating for PTSD, an initial increased rating for lumbar spine degenerative disc disease, and entitlement to a TDIU. Most recently, in a February 2019 decision, the Board granted an initial rating of 50 percent for the Veteran's PTSD for the appeal period prior to April 8, 2014, and an initial rating of 70 percent thereafter. In that decision, the Board also granted entitlement to a TDIU from April 8, 2014, and remanded the issues of entitlement to a TDIU for the appeal period prior to April 8, 2014, and an initial rating in excess of 20 percent for the Veteran's lumbar spine degenerative disc disease. The Veteran appealed this decision to the Court. In January 2020, the Court issued a JMPR, which vacated and remanded the February 2019 Board decision insofar as it denied entitlement to an initial rating in excess of 50 percent for the Veteran's service-connected PTSD for the appeal period prior to April 8, 2014. The parties (the Veteran and Secretary of VA) agreed that the Board erred in the February 2019 decision by failing to provide an adequate statement of reasons or bases for this issue because the Board did not discuss evidence concerning suicidal ideation and impaired impulse control. Finally, the Board also notes that in a January 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the Veteran's lumbar spine degenerative disc disease with IVDS to 40 percent disabling, effective June 24, 2019. As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded for this claim, the claim is still in controversy and on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to an initial rating in excess of 20 percent prior to June 24, 2019, and an initial rating in excess of 40 percent thereafter, for lumbar spine degenerative disc disease with IVDS The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. Id. In the present case, in April 2021, prior to promulgation of a Board decision, the Veteran's representative, in written correspondence, requested to withdraw the Veteran's claims for an initial rating in excess of 20 percent prior to June 24, 2019, and an initial rating in excess of 40 percent thereafter for his service connected lumbar spine degenerative disc disease with IVDS. See April 2021 Appellate Brief. This correspondence constitutes a valid withdrawal of the appeal with respect to these issues. See Hembree v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 1677 (Aug. 31, 2020) (holding that written withdrawals need only comply with 38 C.F.R. § 20.204(b), re-designated as 38 C.F.R. § 19.55(a)). Accordingly, as the Veteran has withdrawn these issues, there remains no allegation of errors of fact or law for appellate consideration. Therefore, the Board does not have jurisdiction to review these issues on appeal, and the appeal is dismissed with respect to these matters. 2. Entitlement to an initial rating of 70 percent, but no higher, for PTSD for the appeal period prior to April 8, 2014 The Veteran contends that he is entitled to an initial increased rating for his service-connected PTSD for the appeal period prior to April 8, 2014. By way of background, on February 3, 2010, VA received the Veteran's original claim for service connection for PTSD. As such, the Board will consider whether an initial rating in excess of 50 percent is warranted for the appeal period from February 3, 2010, to April 7, 2014. 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 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. Evaluations for psychiatric disabilities are assigned pursuant to VA's General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130. For the appeal period prior to April 8, 2014, the Veteran is in receipt of a 50 percent rating under DC 9411. Under DC 9411, 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 difficulty in establishing effective work and social relationships. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The Board notes that considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Further, rating evaluations under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). Although a veteran's symptomatology is the primary consideration in assessing their disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in "most areas" for that rating. Id.; 38 C.F.R. § 4.130. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, after careful review of the claims file, the Board finds that the evidence is in equipoise as to whether the frequency, severity, and duration of the Veteran's PTSD symptoms more nearly approximated occupational and social impairment with deficiencies in most areas as to warrant a rating of 70 percent for the appeal period prior to April 8, 2014. In this regard, the medical evidence of record shows that the Veteran's psychiatric disability resulted in social isolation and avoidance. For example, a May 2010 VA treatment record reflects that the Veteran reported that he continued to experience difficulty being around people especially when in crowds and with driving. Likewise, a February 2011 VA treatment record reflects that the Veteran experienced discomfort around people and had been self-employed for most of his working life because he did not work well with others. Additionally, a May 2011 VA treatment record reflects that the Veteran was very isolative and preferred being alone. The evidence also reflects that the Veteran's PTSD manifested in symptoms, specifically irritability and anger, that substantially impaired his occupational functioning. For example, the April 2014 VA examiner noted that while the Veteran was able to work, he admitted to having verbal arguments at times due to periods of irritability. Likewise, during the September 2014 Board hearing, the Veteran testified that at work his son dealt with the customers because he previously had some arguments with customers. See Board hearing transcript, p. 25. Moreover, in a statement received by VA in October 2014, the Veteran's son stated that the Veteran had outbursts at work and yelled at others, to include during the preceding few years. See October 2014 statement. The private opinions of record further show that the Veteran's PTSD symptoms affected his occupational functioning. For instance, the December 2018 private psychiatric evaluation reflects a finding that the Veteran was completely unemployable due to his PTSD and had not truly functioned as a gainful component of his family business since 2001. The private examiner specifically noted that the Veteran would not be able to function in an employed setting where he had to respond to other individuals including coworkers, supervisors, and the public. Moreover, the April 2021 private vocational expert also found that the Veteran's PTSD impacted his ability to engage in substantially gainful employment since 2001. She explained that his PTSD is a major barrier to employment because all vocations require appropriate, consistent social interactions while the Veteran's unpredictable, volatile, and irascible social interactions would not be tolerated with customers, co-workers, or management in any vocational workplace. The Board notes that while these private opinions were obtained after April 8, 2014, the opinions reflect findings and assessments of the Veteran's occupational functioning and impairments due to his PTSD for the relevant appeal period prior to April 8, 2014. The medical evidence of record also indicates that the Veteran had difficulty effectively controlling his anger outside of his work. See e.g., February 2010 VA treatment record (reporting that he feels as if his emotions get out of control); April 2010 VA treatment record (reflecting that the Veteran reported that he wanted to get a better handle on his propensity for anger); May 2010 VA treatment record (reported that he really struggled with his anger when he was driving); and April 2011 VA mental health outpatient treatment record (reflecting that the Veteran's treatment plan included a goal to decrease the frequency and intensity of his angry feelings). Specifically, a January 2011 VA treatment record reflects that although the Veteran was high functioning at work, his irritability/anxiety interfered with his quality of life and his relationships. The lay evidence for this appeal period also suggests that the Veteran experienced impaired impulse control, as contemplated by the 70 percent rating, because of these anger outbursts. For example, during the September 2014 Board hearing, the Veteran's spouse testified that the Veteran had a rage issue prior to his starting therapy while the Veteran testified that he had engaged in inappropriate yelling and experienced past anger during traffic to the point of getting out of his car and dragging other people out of their cars. See Board hearing transcript, pp. 20-23. In a statement dated November 2018, the Veteran's sister also noted that after 9/11, the Veteran was no longer able to suppress the rage that he felt. Additionally, the medical evidence of record indicates that the Veteran experienced suicidal ideation during the appeal period, which is a symptom specifically contemplated by the 70 percent rating. The Board notes that although there are several instances where the Veteran denied suicidal ideations, he also reported suicidal ideations at various points during the appeal period. In this regard, a November 2011 VA treatment record reflects that the Veteran reported having suicidal thoughts after an argument with his spouse and that he also had occasional suicidal thoughts in the past. He denied having further thoughts since this most recent incident and was judged not to be at a significant risk for self-harm at that time. The April 2014 VA examination further reflects that the Veteran had suicidal thoughts on a few occasions while the Veteran testified, during the September 2014 Board hearing, that he thought about self-harm, and had come close a couple of times in the past, most recently a year and a half ago after a family argument. See Board hearing transcript, p. 22. Additionally, during the December 2018 private psychiatric evaluation, the Veteran reported that he considered hanging himself in 2012 while the private evaluation also reflects that the Veteran consistently experienced both passive and active suicidal ideation since his return from Vietnam. The medical evidence further indicates that his PTSD manifested in short-term memory problems. For instance, a March 2010 VA mental health treatment note reflects that the Veteran had difficulty with his memory, such as remembering names, ever since 9/11. The April 2010 VA examination also reflects that the Veteran had mild memory impairment with forgetting names, directions, and recent events. At the time of that examination, the Veteran also reported having difficulty recalling trivial daily details. Finally, the medical evidence of record for the appeal period prior to April 8, 2014, shows that the Veteran's PTSD symptoms also included chronic sleep impairment, panic attacks, nightmares, avoidance, hypervigilance, anxiety, numbness, and flashbacks. See February 2010 VA treatment record (reflecting the Veteran has nightmares, avoidance, and hypervigilance); April 2010 VA examination (noting symptoms including a peristent sense of a foreshortened future, persistent restricted range of affect, irritability or outbursts of anger, and panic attacks that occur less than once per week); May 2010 VA treatment record (reflecting symptoms that include emotional lability, night sweats, emotional numbing, frequent intrusive memories, hypervigilance, and a sense of a foreshortened future); October 2010 VA treatment record (reflecting that the Veteran has felt some numbness and detachment); January 2012 VA treatment record (reflecting that the Veteran typically sleeps approximately four hours a night); and April 2014 VA examination (reflecting that the Veteran has been using over the counter medication to sleep for the last 15 years and that his last panic attack was four years ago). The Board acknowledges the April 2010 VA examiner's finding that the Veteran's psychiatric symptoms are not severe enough to interfere with social and occupational functioning. However, the April 2010 VA examiner also noted that the Veteran experienced a great deal of ongoing tension and pressure, which required a tremendous amount of personal resources to deal with, while the other evidence of record indicates that the Veteran's PTSD symptoms, in particular his anger outbursts and difficulty communicating with others, had a great effect on his work and social relations. The Board also acknowledges that the Veteran's psychiatric symptoms do not mirror all the symptoms enumerated for a 70 percent rating under the General Rating Formula for Mental Disorders and that there is evidence of record reflecting more moderate symptomatology at certain periods of time for the appeal period prior to April 8, 2014. However, affording the Veteran the benefit of the doubt, the Board finds that such evidence is reflective of the Veteran's waxing and waning psychiatric symptomatology and, thus, does not reflect sustained improvement. Moreover, it is apparent that the Veteran's symptoms, especially his anger outbursts, social isolation, chronic sleep impairment, and suicidal ideation, have been of the frequency, severity, and duration to have rendered the Veteran more nearly socially and occupationally impaired with deficiencies in most areas throughout the appeal period. See Mauerhan, 16 Vet. App. at 443; Vazquez-Claudio, 713 F.3d at 117. The Board does not find, however, that the criteria for a 100 percent rating is warranted for the appeal period prior to April 8, 2014, as the preponderance of the evidence does not indicate that the Veteran's symptoms more nearly approximated total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; persistent danger of hurting self or others; grossly inappropriate behavior; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Specifically, the Veteran's symptoms have not been shown to be so severe that they rise to the level of both total occupational and total social impairment. The Board acknowledges that, in this decision below, it has found the Veteran to be unable to engage in substantially gainful employment due to his service-connected disabilities, to include PTSD. However, total social impairment has not been shown for the appeal period. "Total" is defined as "whole, not divided; full; complete," and "utter, absolute." Black's Law Dictionary, 1498 (7th ed. 1999). Here, the Veteran has been able to maintain personal relationships, including supportive familial relationships, throughout this appeal period. For example, during the April 2010 VA examination, the Veteran reported that he got along with his siblings, had a wonderful relationship with his spouse, and described that he was best friends with his two sons. A December 2011 VA treatment record also reflects that the Veteran attended a military reunion annually where he reconnects with his Army buddies while a July 2012 VA treatment record reflects that the Veteran and his spouse were planning to celebrate their anniversary out with friends and that they had an upcoming trip planned with another couple. Moreover, the April 2014 VA examination reflects that the Veteran was involved with the Combat Infantry Badge Association and was a Chairman of a committee and that he has also been a member of the Veterans of Foreign Wars. This evidence does not indicate total social impairment as contemplated by the 100 percent rating. The Board is sympathetic to the Veteran's belief that he is entitled to a higher rating and has considered his competent statements regarding is symptoms associated with his PTSD. The Board notes that it has no reason to challenge the credibility of these contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, the Veteran's reports describing his symptoms of suicidal ideation, anxiety, hypervigilance, social isolation, chronic sleep impairment, worklike setting difficulties, and anger issues effecting his occupational and social functioning are already reflected by the 70 percent rating. The Veteran's lay statements do not provide a basis upon which to assign a higher rating because they do not reflect total social impairment. In sum, and after resolving reasonable doubt in favor of the Veteran, for the appeal period prior to April 8, 2014, his PTSD manifested in symptoms most closely approximating occupational and social impairment with deficiencies in most areas. Accordingly, an initial rating of 70 percent, but no higher, for his service-connected PTSD for the appeal period from February 3, 2010, to April 7, 2014, is granted. 3. Entitlement to a TDIU due to service-connected disabilities for the appeal period prior to April 8, 2014 As an initial matter, the Board notes that the Veteran is currently in receipt of a TDIU from April 8, 2014. Additionally, because entitlement to a TDIU was raised during the pendency of his initial increased rating claim for PTSD, the Board will consider whether a TDIU is warranted from February 3, 2010, the date of the Veteran's original claim for service connection for PTSD, to April 7, 2014. See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). TDIU may be assigned where the schedular rating is less than total and it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16(a), he or she may still receive a TDIU on an extraschedular basis if it is determined that he or she is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). In cases where extraschedular consideration is warranted, referral to the Director of Compensation Service is necessary prior to a determination on eligibility. In determining unemployability for VA purposes, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Medical evaluations are probative to understanding the level of functional impairment; however, the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). However, marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the present case, for the appeal period prior to April 8, 2014, the Veteran is service connected for the following disabilities: (1) PTSD now rated as 70 percent disabling; (2) lumbar spine degenerative disc disease with IVDS rated as 20 percent disabling; (3) bilateral tinnitus rated as 10 percent disabling; and (4) left ear hearing loss rated as noncompensable (0 percent). As such, the Veteran now meets the schedular criteria for a TDIU for the pertinent appeal period. The Board acknowledges that because the Veteran did not meet the schedular criteria for a TDIU at the time of the February 2019 Board decision, the claim was remanded for administrative review for extraschedular consideration by the Director of Compensation Service under the provisions of 38 C.F.R. § 4.16(b). The Board notes that although a March 2020 negative opinion by the Director of Compensation Service respecting the Veteran's claim for TDIU is associated with the record, this adverse determination does not constitute evidence that must be weighed. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015); Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Therefore, the remaining question is whether the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. The Veteran contends that although he worked in the family business during the appeal period, his employment should be considered marginal. Specifically, he contends, through his representative, that he did not earn income above the poverty threshold for one person as determined by the United States Bureau of the Census for the relevant appeal period and that his work in the family business should be considered a sheltered work environment. See April 2021 Appellate Brief. After careful review of the evidence of record, the Board agrees and finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities limited him to no more than marginal employment, thereby precluding him from engaging in substantially gainful employment for the appeal period prior to April 8, 2014. In this regard, the Veteran reported that from 1986 to 2001, he was self-employed and owned his own business working on cars. See January 2019 VA Form 21-8940. Thereafter, he reported that he transferred management of his business to his son due to his service-connected PTSD and lumbar spine disability and that while he continued to work with the family business ever since, he has only gained minimal earnings. See id. In support of this contention, the Veteran provided an SSA earning record revealing that for the appeal period prior to April 8, 2014, he consistently earned annual incomes that were substantially less than the poverty threshold for one person as determined by the United States Bureau of the Census. See January 2019 Correspondence. The evidence of record also reflects that the Veteran's service-connected disabilities impaired his ability to work, limiting him to no more than marginal employment. For instance, a June 2012 VA treatment record reflects that the Veteran experienced chronic back pain and could not work when he had flare-ups. During the September 2014 Board hearing, the Veteran testified that his service-connected lumbar spine disability impacted his ability to work because he could no longer lift things due to his disability. See Board hearing transcript, p. 6. Likewise, the April 2014 VA back examination corroborates that the Veteran experienced occasional flare-ups of his back that were sometimes nearly unbearable and that his lumbar spine disability impacted his ability to work in that he was limited with bending over and could not engage in heavy lifting. Additionally, as discussed above, the evidence also reflects that the Veteran's PTSD manifested in symptoms, specifically irritability and anger outbursts, that substantially impaired his occupational functioning. For example, a February 2011 VA treatment record reflects that the Veteran had been self-employed for most of his working life because he did not work well with others. Likewise, during the September 2014 Board hearing, the Veteran testified that his son dealt with the customers at work because he previously had some arguments with customers. See Board hearing transcript, p. 25. Moreover, in a statement received by VA in October 2014, the Veteran's son stated that the Veteran had outbursts at work and yelled at others, to include during the preceding few years. See October 2014 statement. Significantly, in support of his claim, the Veteran provided a private vocational assessment, dated April 2021, wherein a private vocational expert opined, after reviewing the Veteran's records and interviewing him, that the Veteran's service-connected disabilities have prevented him from participating in gainful employment since at least 2001, which is when he last earned income over the poverty threshold. The vocational expert explained that although the Veteran worked with his son, he received a broad range of accommodations/leniencies, including being able to leave the work station for hours, resting every 30 minutes due to pain, and raging at customers who challenged his opinion, which allowed the Veteran to maintain a presence at the business but otherwise constituted unreasonable accommodations that he would not otherwise be given in the employment world. She also explained that his service-connected lumbar spine disability necessitates frequent breaks and that his work exceeded his physical ability to perform the essential job duties of rebuilding race cars or any vehicles. She also found that his PTSD disability is a major barrier to employment because all vocations require appropriate, consistent social interactions while the Veteran's unpredictable, volatile, and irascible social interactions would not be tolerated with customers, co-workers, or management in any vocational workplace. She further explained that his education and work experience does not readily translate to sedentary occupations while his memory issues make it difficult for him to learn new skills and complete tasks appropriately. The Board finds this highly probative evidence in favor of the Veteran's claim as the private vocational expert reviewed the Veteran's records, detailed his educational and employment history, and provided rationale for her conclusions. The Board finds that the above evidence, as well as the other medical and lay evidence of record, reflects that the Veteran's service-connected disabilities limited him to no more than marginal employment, thereby precluding him from engaging in substantially gainful employment for the appeal period prior to April 8, 2014. The evidence shows that for the appeal period, the Veteran did not maintain a substantially gainful income and that he was only able to work with the family business through the accommodations that his son allowed. The evidence also shows that his psychiatric disorder would have limited his employability options to settings where he could work in isolation with limited interactions with others, including supervisors. To the degree that the Veteran would have been able to find a job outside of his family business, the evidence suggests that his PTSD symptoms, including chronic sleep impairment, mild memory loss, and anger outbursts, would impede workplace productivity while his lumbar spine flare-ups would also impact his ability to reliability and productively work. Notably, the April 2021 private vocational expert found that the Veteran's job requirements exceeded his physical ability, that his memory problems would affect his ability to learn new employment skills, and that based upon the Veteran's educational and occupational history, his work skills would not readily translate to other occupations. In light of the Veteran's educational and employment history and resolving all reasonable doubt in favor of the Veteran, the Board finds that for the period prior to April 8, 2014, the Veteran's service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment. As such, a TDIU is granted from February 3, 2010, to April 7, 2014. See 38 U.S.C. § 5107(b). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.