Citation Nr: 21031049 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-50 237 DATE: May 20, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. An initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with dysthymic disorder is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss manifests by no more than Level I hearing impairment in the right ear and Level III hearing impairment in the left ear, which corresponds to a noncompensable rating. 2. The Veteran's PTSD with dysthymic disorder more nearly approximates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; total occupational and social impairment is not shown. 3. Resolving all reasonable doubt in the Veteran's favor, the evidence is at least in equipoise that the Veteran is unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an initial rating of 70 percent, but no higher, for PTSD with dysthymic disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 1968 to December 1973. These matters are before the Board of Veterans' Appeals (Board) on appeal from April 2013 and July 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified before the undersigned Veterans Law Judge at a virtual tele-hearing. A transcript of the hearing is of record. The Board remanded these matters in August 2020 for additional development. As the actions specified in the remand have been substantially completed, the case has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluation determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. 1. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran is currently in receipt of an initial noncompensable rating for service-connected bilateral hearing loss, effective January 24, 2012, pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran generally contends that a compensable rating is warranted because his hearing acuity is worse than contemplated by his currently-assigned disability rating. In evaluating hearing loss, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity. Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test. 38 C.F.R. § 4.85(a). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I for essentially normal acuity through XI for profound deafness) for hearing impairment, based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 hertz, divided by four. 38 C.F.R. § 4.85, Diagnostic Code 6100. Table VII is then used to determine the percentage evaluation by intersecting the Roman numeral designations from Table VI for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Exceptional patterns of hearing impairment are evaluated under the provisions of 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 hertz, and 70 decibels or more at 2000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Turning to the relevant medical evidence of record, the Veteran underwent a VA audiology examination in February 2013. Upon examination, the Veteran reported that he has difficulty hearing conversations, especially if background noise is present, which results in him having to ask the speaker to repeat themselves. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). Upon audiometric testing, the Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: February 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 40 50 55 45 96 LEFT 35 40 55 60 48 96 The February 2013 audiology examination findings, applied to Table VI, yield a numeric designation of Roman numeral I in the right ear on the basis of a 45 decibel puretone threshold average and 96 percent speech discrimination, and a numeric designation of Roman numeral I in the left ear on the basis of a 48 decibel puretone threshold average, and 96 percent speech discrimination. The numeric designation for the right ear, I, along with the numeric designation for the left ear, I, entered into Table VII, corresponds to a noncompensable rating for hearing impairment. 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 are not present. The Veteran underwent another VA audiology examination in December 2020. Upon examination, the Veteran reported that he has difficulty hearing normal conversations and the television, especially if background noise is present. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). Upon audiometric testing, the Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: December 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 40 60 80 54 98 LEFT 40 60 75 75 63 90 The December 2020 audiology examination findings, applied to Table VI, yield a numeric designation of Roman numeral I in the right ear on the basis of a 54 decibel puretone threshold average and 98 percent speech discrimination, and a numeric designation of Roman numeral III in the left ear on the basis of a 63 decibel puretone threshold average, and 90 percent speech discrimination. The numeric designation for the right ear, I, along with the numeric designation for the left ear, III, entered into Table VII, corresponds to a noncompensable rating for hearing impairment. 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 are not present. Based on the evidence above, the Board finds that an initial compensable rating for the Veteran's bilateral hearing loss is not warranted at any time during the appellate period. In making this finding, the Board is sympathetic to the Veteran's contention that he has difficulty hearing every day conversations due to his hearing loss disability. However, the Board must consider the Veteran's description of his service-connected disability in conjunction with the clinical evidence of record and the pertinent rating criteria. In this regard, the Board emphasizes that disability ratings for hearing loss are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. at 349. Thus, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiological testing of record. As described above, the February 2013 and December 2020 VA audiological testing results, which are the only audiometric tests of record during the relevant period, when applied to the rating criteria, show that the Veteran's bilateral hearing loss disability is not eligible for a compensable rating at any time. Furthermore, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In this case, the VA examiners noted that the Veteran reported experiencing a functional impact due to difficulty hearing conversation, particularly in the presence of background noise. The Board finds that such functional impairment, in addition to the Veteran's other lay statements of record, including his hearing testimony, has been appropriately considered. However, the overall evidence, as previously discussed, fails to support the assignment of an increased rating. The Board further notes that the Veteran's reported functional limitations are manifestations of decreased hearing acuity, which is already contemplated by the schedular rating criteria for hearing loss. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, including his difficulty hearing people or the television or telephone. The Board notes that this conclusion is consistent with the United States Court of Appeals for Veterans Claims' holding in Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) ("[W]hen a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria."). The Board further finds that other than difficulty hearing or understanding speech, the record contains no evidence of other symptoms attributable to the service-connected hearing loss. Finally, the Board acknowledges the Veteran's sincere belief that his hearing loss is worse than reflected by his currently-assigned rating. The Veteran is competent to report symptoms of disability, such as difficulty hearing speech. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he is not competent to report that his hearing acuity is of sufficient severity to warrant a higher rating under the rating schedule for hearing loss, as such an opinion requires specialized medical testing and expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Accordingly, the Board finds that entitlement to an initial compensable rating for bilateral hearing loss is not warranted at any time during the period on appeal. As the evidence of record preponderates against the claim, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. 2. Entitlement to an initial rating in excess of 50 percent for PTSD with dysthymic disorder The Veteran generally contends that he should be assigned a higher initial rating for service-connected PTSD with dysthymic disorder, which is currently rated 50 percent disabling from January 24, 2012. For the reasons specified below, the Board finds that an initial rating of 70 percent, but no higher, is warranted for the entire appellate period. The Veteran's PTSD is rated under Diagnostic Code 9411. Pursuant to a General Rating Formula for Mental Disorders, specified in 38 C.F.R. § 4.130, a 50 percent rating is appropriate when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 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 that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately, and effectively; impaired impulse control (e.g., unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (e.g., work or work like setting); 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; 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, Diagnostic Code 9411, General Rating Formula for Mental Disorders. The symptoms associated with each rating under the General Rating formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate rating of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating formula. See id. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA shall assign a rating 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. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In other words, 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). VA no longer recognizes Global Assessment of Functioning (GAF) scores as an effective method of evaluating the severity of psychiatric disabilities. See 38 C.F.R. § 4.125 (incorporating by reference the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)). Therefore, the Board will not rely on any GAF scores in adjudicating the present claim. See Golden v. Shulkin, 29 Vet. App. 221, 224-26 (2018). Turning to the relevant evidence of record, the Veteran underwent a VA examination in February 2013. Upon examination, he was confirmed to have a diagnosis of PTSD with dysthymic disorder. When verifying the diagnostic criteria for PTSD were met, the VA examiner found the Veteran to have the following symptoms: recurrent and distressing recollection of traumatic events and dreams, efforts to avoid thoughts, feelings, or conversations associated with the trauma, markedly diminished interest or participation in significant activities, feeling of detachment or estrangement from others, restricted range of affect, difficulty falling or staying asleep, irritability or outbursts of anger, hypervigilance, and exaggerated startle response. The examiner determined that these symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. On examination, the Veteran also endorsed symptoms such as depressed mood, anxiety, chronic sleep impairment, flattened effect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran feels depressed every day. During the examination, the Veteran reported that he has been divorced four times due to his anger problems, and that he was currently engaged to be married a fifth time. He described having no close work or social friendships and a strained relationship with his adult daughter. He is not close to his siblings. He stated that he got along "okay" with people at work, but not with his supervisor. The VA examiner determined that the Veteran's PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran underwent another VA examination in February 2014. Upon examination, the Veteran reported that he has a quick temper and extreme outbursts of anger. He stated that he has "been through five wives" due to his bad temper, relating that he easily becomes exasperated and tells them to "get out." He described his current marriage as "tough" and reported that there has been physical abuse from both sides. He and his wife do very little together. He reported that he occasional becomes sullen, withdrawn, irritable, and apathetic. He quit his last job because he got "fed up" with the job. He reported that he would occasionally not go to work due to apathy. The Veteran spends his days doing housework, cooking, running errands, and occasionally doing favors for friends. He is involved with his church. On examination, the Veteran endorsed symptoms of depressed mood, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control with unprovoked irritability and periods of violence. The examiner noted that the Veteran was appropriately groomed and dressed; he was cooperative, friendly, and talkative during the assessment; and his affect and mood were appropriate to the topic. The examiner determined that the Veteran's PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. In October 2017, the Veteran underwent a private mental status examination with a licensed clinical psychologist. Upon examination, the Veteran reported experiencing frequent intrusive memories from Vietnam and unpleasant dreams about rocket attacks that wake him and make it difficult for him to fall back asleep. Exposure to cues that remind him of Vietnam cause him distress and anger. As a result, he tries to avoid memories, thoughts, or feelings about Vietnam. The Veteran reported experiencing extreme anger and negative emotional states, especially towards other people. He described irritable behavior and angry outbursts where he will raise his voice, yell, or cuss, throw, break, or hit things, and will push, shove, or hit other people. He stated that this aggression has occurred six to eight times in the past month. The Veteran also reported diminished interest in all of his previous hobbies and activities, such as shooting guns, golfing, and bowling, because he cannot "deal with people." Other frequently experienced symptoms include hypervigilance, startled response to sudden movements or noises, and problems with concentration, focus, and memory. The Veteran reported that he used to work to ward off unwanted feelings, but that since he retired he has difficulty reading, filing out paperwork, and he often misplaces things and forgets names, addresses, and phone numbers. The Veteran further described having a poor relationship with his wife and family. The examiner noted that the Veteran displayed a total lack of commitment or loyalty to the people in his life, such as his previous wives, current wife, and daughter, who he abruptly dismissed. The examiner further noted that the Veteran was somewhat ambivalent about interpersonal relationships and displays a notable lack of close emotional ties or commitments. On mental status examination, the examiner found the Veteran to be well-oriented to person, place, and time, with average insight and judgment, and normal affect. He had coherent, but pressured and rapid speech, and his attitude was cooperative. After evaluating the Veteran, the psychologist concluded that the Veteran's PTSD has an extreme impact on important parts of his life, such as marriage, parenting, activities, interests, hobbies, and friendships. He noted that the Veteran's PTSD causes him considerable distress in functional impairment and limited functioning even with effort. Therefore, the examiner concluded that the Veteran's PTSD causes deficiencies in almost all areas, including work, family relations, and mood due to unprovoked irritability and periods of violence, problems with stress, and his inability to establish and maintain relationships. At the August 2020 Board hearing, the Veteran testified that he "really [does not] care about a whole lot of stuff." He testified that he had just recently divorced his fifth wife and that he does not see or talk to his siblings or adult children, even though they live nearby. He stated that he prefers to stay home so that he does not have to see or deal with people. The Veteran also testified that when driving he oftentimes thinks about ramming his car into a telephone pole or another car. He has begun to struggle with remembering peoples' names and other details. The Veteran underwent another VA examination in December 2020. Upon examination, the Veteran reported that he lives alone but that he has been trying to "get out more." He spends time with friends on Tuesday nights at his Men's Recovery Group and at church on Sundays. He is employed part-time and works "when [he] feels like it." He cooks, bakes, does laundry, and cleans; he did not report difficulties with grooming or hygiene. The Veteran endorsed symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or work-like setting. The VA examiner found the Veteran to be polite, cooperative, but with a downcast affect. He was noted to avoid eye contact. His thoughts were clear and goal-oriented. The Board has reviewed the Veteran's extensive VA treatment records, which show that he has received regular mental health treatment, including counseling, psychotherapy, and medication management, since approximately 2015. Throughout the relevant time period, the Veteran has consistently endorsed psychiatric symptoms such as depressed mood, anxiety, sleep impairment and nightmares, relationship problems, frequent outbursts of anger and violence, irritability, low energy, poor concentration, and general apathy towards people and activities. In an August 2019 psychiatry note, the Veteran reported that he began hearing voices last week but that he cannot make out what they are saying to him; he reported that this happened twice and lasted about 15 seconds each time. In December 2019, he again reported that he occasionally hears voices but does not know what they are saying to him. Notably, the Veteran's treating mental health clinicians consistently found him to be oriented to person, place, and time with logical and appropriate speech, thought processes and content, and congruent mood and affect throughout the appellate period. After careful review of the medical and lay evidence of record, and in consideration of the above legal criteria, the Board finds that an initial increased rating of 70 percent, but no higher, is warranted for the entire period on appeal. Throughout the relevant period, the Board finds that the severity, frequency, and duration of the Veteran's PTSD symptoms most closely approximate occupational and social impairment with deficiencies in most areas. In this regard, the Board notes that the Veteran's most severe symptoms of PTSD have consistently included impaired impulse control with periods of unprovoked irritability, anger, and violence; frequent episodes of depression affecting the ability to function independently, appropriately, and effectively; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; and disturbances of motivation and mood. He has also endorsed occasional, passive suicidal ideation and plan. In consideration of the medical evidence outlined above, the Board finds that these symptoms most closely approximate occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. Although the medical evidence does not show symptomatology such as obsessional rituals, speech intermittently illogical, obscure, or irrelevant, spatial disorientation, or neglect of personal appearance and hygiene, the Board notes that the symptoms enumerated 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 rating. See Mauerhan, 16 Vet. App. at 436. Thus, even though not all the listed symptoms contemplated by a 70 percent rating have been shown, the Board concludes that the actual severity, frequency, and duration of symptomatology consistent with a 70 percent rating have been sufficiently demonstrated during the period on appeal. The Board has also considered whether the Veteran's symptoms warrant the assignment of the next higher disability rating. However, the Board finds that the Veteran's signs and symptoms of PTSD do not meet the criteria for a 100 rating. A 100 percent rating requires total occupational and social impairment. However, the evidence of record does not indicate that the Veteran has exhibited at any time symptoms analogous to the type and degree of symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, or disorientation to time or place or person. Therefore, the Board does not find that a higher disability rating of 100 percent is warranted. Accordingly, the Board finds that the preponderance of the evidence weighs in favor of assigning an initial 70 percent rating, but no higher, for the Veteran's PTSD with dysthymic disorder. In making this finding, the Board has resolved all reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53. 3. Entitlement to a TDIU The Veteran asserts that his service-connected disabilities prevent him from securing and following a substantially gainful occupation. As discussed below, the Board finds that resolving all reasonable doubt in favor of the Veteran, a TDIU is warranted. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340 (a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341 (a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, will be considered as one disability. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the veteran's service-connected disabilities render him incapable of substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran's earned 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). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. When jobs are not realistically within his or her 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 the Veteran's level of education, special training, and previous work experience, but it may not be given to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 conclusions of VA examiners are not dispositive. However, the observations of the examiners regarding functional impairment due to service-connected disability go to the question of physical or mental limitations that may impact the veteran's ability to obtain and maintain employment. Pursuant to the Board's decision herein, the Veteran is currently service-connected for PTSD with dysthymic disorder (70 percent); diabetes mellitus (20 percent); branch retinal vein occlusion with macular edema, right eye (10 percent); tinnitus (10 percent); hypertension (10 percent); peripheral neuropathy of the left lower extremity (10 percent); peripheral neuropathy of the right lower extremity (10 percent); bilateral hearing loss (noncompensable); and erectile dysfunction (noncompensable). However, as of January 24, 2012, the Veteran has two or more service-connected disabilities, with one disability rated at 40 percent or higher, and a combined rating of at least 70 percent. As such, the Board finds that the Veteran has met the percentage requirements under 38 C.F.R. § 4.16(a) for consideration of a schedular TDIU from January 24, 2012. The question remains, however, whether the Veteran has been precluded from obtaining or maintaining a substantially gainful occupation as a result of his service-connected disabilities. The evidence of record indicates that the Veteran has an associate degree in business management. The Veteran last worked full-time as a safety consultant where he ensured businesses were complaint with OSHA standards. He worked for the same company off and on for 17 years before retiring in August 2013. The Veteran has stated that he quit his job because he got "fed up" with dealing with people. However, he went back to work at the same company as a safety consultant shortly after quitting and now works part-time "when he feels like it." At the August 2020 Board hearing, the Veteran testified that he went back to work after his divorce and when his son turned 18, as his VA disability compensation decreased with the loss of dependents and he needed the money. He now earns approximately $7200 per year. The Veteran underwent a vocational assessment in October 2017. Upon interview of the Veteran and review of his claims file, a rehabilitation specialist determined that the Veteran's PTSD imposes significant vocational limitations due to symptoms causing decreased efficiency and intermittent periods of inability to perform occupational tasks, disturbances of motivation and mood, irritability and outbursts of anger, memory problems, and difficulty in establishing and maintaining effective work relationships. The specialist noted that these symptoms would result in behaviors that are unacceptable in a standard work place, such as excessive absenteeism, incompletion of work tasks, or isolation due to not being able to work with others. The specialist also opined that the Veteran's peripheral neuropathy in the legs due to diabetes mellitus would also interfere with non-sedentary employment. At a December 2020 VA examination for PTSD, a VA examiner noted that the Veteran's depressed mood and avoidant behaviors could contribute to missed work, slowed work performance, or an inability to maintain work relationships. Moreover, his poor frustration tolerance could limit his ability to tolerate work stressors. In light of the above, the Board finds that there is ample and consistent medical and lay evidence indicating that, since at least August 2013, when he last worked full-time, the Veteran has been incapable of obtaining or maintaining a substantially gainful occupation due predominately to his mental health symptoms caused by service-connected PTSD with dysthymic disorder. Consistent with the findings of the October 2017 rehabilitation specialist and the December 2020 VA examiner, the Board agrees that the Veteran's symptoms of PTSD would substantially interfere with his ability to compete or perform adequately in the full-time work force. In making this determination, the Board acknowledges that the Veteran currently works part-time at his former company doing safety consulting, however, the evidence of record establishes that he only does so "when he feels like it" and he is afforded this accommodation because his boss is his best friend. The Board finds that this part-time work, in which the Veteran only works a few days per month and earns about $7200 per year, constitutes marginal employment. Therefore, the Board finds that the evidence is at least in equipoise that the Veteran's service-connected disabilities preclude him from securing or following any substantially gainful employment. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that entitlement to a TDIU is warranted. The Veteran's appeal is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.