Citation Nr: 21032440 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 12-10 554 DATE: May 27, 2021 ORDER 1. Entitlement to a disability rating of 70 percent, but no more, for post-traumatic stress disorder (PTSD) with bipolar disorder beginning April 5, 2004 is granted. 2. Entitlement to an award of total disability due to individual unemployability (TDIU) effective September 24, 2014 is granted. FINDINGS OF FACT 1. Giving the Veteran the benefit of any reasonable doubt, for the entire appeal period the Veteran's PTSD is most closely manifested by psychiatric symptomatology resulting in occupational and social impairment in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. 2. Giving the Veteran the benefit of any reasonable doubt, the evidence is sufficient to show that beginning September 24, 2014 the Veteran was unable to secure and follow a substantially gainful occupation consistent with his education and work history due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating of 70 percent, but no higher, for PTSD disorder beginning April 5, 2004 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for an effective date of September 24, 2014 for the award of 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 November 1988 to December 1992. Subsequently, the Veteran served on active duty in the United States Army from October 1998 to September 2001. In a November 2019 decision (Board Decision) the Board of Veterans' Appeals (Board) denied the Veteran's claim for entitlement to a disability rating in excess of 70percent for post-traumatic stress disorder (PTSD) with bipolar disorder prior to October 22, 2018. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (CAVC or Court). In December 2020 the Court granted the Parties' Joint Motion for Remand (JMR) vacating the Board's decision and remanded the claim back to the Board for readjudication. In the JMR the Parties (the Veteran and the Board) agreed that the Board erred when it failed to provide an adequate statement of reasons or bases for its decision. See 38 U.S.C. § 7104(d)(1); see also Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board failed to address relevant evidence of record, including information contained in the Veteran's Social Security Administration (SSA) records provided to VA. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). It was specifically noted that the Board did not address the "Function Report" and "Information about your Daily Activities" documents contained therein. The Parties also agreed that the Board erred by not determining whether the record raised a claim for total disability due to individual unemployability (TDIU) prior to December 10, 2015 under the provisions of Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Parties agreed that on remand the Board must determine whether, pursuant to Rice, a claim for TDIU prior to December 10, 2015 was raised. It was specifically noted that the Board did not address the November 2008 statement submitted by the Veteran's father and the Veteran's statement included in his April 2012 VA Form 9. The Parties further agreed that the Veteran was permitted to submit additional evidence and argument. The VA sent a letter to the Veteran and his representative in December 2020 which advised the Veteran of the Court Order and advised the Veteran of his ability to submit additional evidence within 90 days, or that he would waive this right. Neither the Veteran nor his representative submitted any additional evidence or argument in response. The Board finds that there was substantial compliance with this remand instruction. 1. Entitlement to an increased rating for PTSD. The Veteran seeks an increased rating for PTSD symptoms, greater than a 70 percent disability compensation level prior to October 22, 2018, at which time he was granted a total 100 percent disability rating level. The Veteran is currently granted service connection for PTSD with bipolar disorder under diagnostic code (DC) 9411 at a disability level of 10 percent from October 1, 2001; 30 percent from April 5, 2004 (DC's 9432-9411); 50 percent from August 27, 2008 (DCs 9432-9411); 70 percent from April 27, 2010 (DCs 9432-9411); and 100 percent from October 22, 2018. The Veteran filed his initial claim for entitlement to service connection for PTSD in October 2001, which was granted in an April 2002 rating decision which assigned an initial disability rating lever of 10 percent, effective October 1, 2001. The Veteran was notified of this decision and his options to appeal in an April 10, 2002 letter from the VA. The Veteran did not file an appeal of this decision within the permitted time period and it became final. The Veteran submitted his request for an increased disability rating for his PTSD on April 5, 2004 claiming that his disability has worsened. Later that month the Veteran asserted a claim for entitlement to service connection for bipolar disorder, on secondary basis to his PTSD. In a September 2004 rating decision, the Veteran's PTSD was characterized as PTSD with bipolar disorder, and the disability rating level was increased to 30 percent, effective April 5, 2004, the date of his claim for an increased rating. This is when the appeal period begins. 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. 38 U.S.C. § 1155. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 U.S.C. § 1155, 38 C.F.R. § 4.27. 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in the condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran's PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. At the beginning of the appeal period, the Veteran's PTSD was rated at a 30 percent disabling level. Under the General Rating Formula For Mental Disorders, to include PTSD, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation 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; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is assignable where 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 (ADLs) (including maintenance of minimal personal hygiene); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The evaluation 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 symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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. 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising 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(b). In evaluating the level of disability, it is also necessary to evaluate such from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant's general evidentiary burden to establish all elements of the claim). The Evidence of Record. The Board first notes that the summary of evidence in this section is applicable to and will be referenced in the analysis of other issues before the Board. Additionally, the Board notes that the Veteran's case has a very long, complex, and extensive record of evidence, both in volume of documents and treatment encounters, which cannot feasibly be captured in its entirety in this decision. The Board has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal and remand. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the issues in the claim and this appeal. Social Security Administration Records Medical records received from the SSA consist of mostly of the Veteran's military and VA medical records. See also Veteran's Statement in Support of Claim, VA Form 21-413B, dated November 16, 2009 ("Social Security made their disability determination from VA records Records you already have! There was no outside exam."). There were, however, documents in addition to those from either the VA or military. In a May 1, 2004, Daily Activity Questionnaire, the Veteran stated that he spends most of his day trying to clear his mind and work on alternative job skills and he worked on coping skill form his doctor. He also claimed difficulties due to depression with personal hygiene, avoidance of people, though he shops at least once per month at 2 or 3 in the morning and quickly shops by himself. His sister helps with laundry and house cleaning while his dad helps with yardwork. Nobody helped him with meals at this time and he was able to cook for himself. He asserted that he could not function when manic and loss of memory. He further asserts that he withdraws as his PTSD makes him paranoid. A similar Daily Activities Questionnaire of the same date focused on his problems due to his orthopedic conditions. In a SSA Psychiatric Review Technique Form, dated May 24, 2004, the Veteran's depressive disorder was noted to include mood disturbances accompanied by full or partial manic or depressive syndrome with symptoms of appetite disturbance with change in weight, sleep disturbance, decreased energy and feelings of guilt or worthlessness. His anxiety related disorder was noted to include symptoms of recurrent and intrusive recollections of a traumatic experience which ar a source of marked distress. His bipolar and PTSD conditions were noted to be present, but to not precisely fit the diagnostic criteria. He was noted to have moderate restriction of activities of daily living and difficulties maintaining concentrations, persistence and pace. He had marked difficulties in maintaining social function. Further, he was noted to have difficulties with ADL's o include problems with personal hygiene, that no one helps with meals, his sister and dad help him with chores and handling change or routine. He was noted to be able to drive and was able to go away from his home alone. In a SSA Functional Capacity Assessment, dated May 24, 2004, the Veteran's ability to complete a normal workday and work week without interruptions from psychologically based symptoms was noted to be markedly limited. The evaluator stated that the Veteran was unable to complete a normal work week without interruptions from psychologically based symptoms and not able to perform at a consistent pace without an unreasonable number and length of rest periods. In support of his SSA claims, the Veteran completed a "Function Report Adult," Form SSA-3373-BK, dated July 8, 2009. In describing his normal day the Veteran indicated that one of the first things he does is take his medicine. He then goes to his campus, attends classes, comes home, watches the news then goes to bed. He claims that since his PTSD he no longer has friends, is not able to work, and had "a life." He claims to not sleep much due to the PTSD, bipolar, and mania. He asserted an inability to regularly bathe or shave because he does not care, and that this family tells him to do so. He also asserts the while his doctors make lists for his medicine schedule, he often does not remember what or when. He is able to prepare his own meals, but he is often not hungry or forgets. He claimed to forget to do household chores. He also asserts that he can't remember things and gets confused, he can't finish anything or stay on track, loses track of blocks of time as he can pay attention for only 2-5 minutes. Socially, he claims that hit is hard to get close to people and that he is paranoid of them, and believes people think he is weird. He claims to not spend time with people except for school, but the record reflects that he dies interact with his sister and father. He does not claim any problems with authority, and he was never fired or laid off because of not being able to get along with people. In a May 20, 2009 SSA Continuing Disability Review Report, the Veteran claimed his condition has worsened in that he has been having psychotic breaks, increased paranoia, suicidal ideation, and hallucinations. He admitted he takes his medicine at night. He claimed difficulties with ADLs such as bathing, forgets sometimes; sometimes cannot remember to take his medications including what he took and when; preparing meals, forgets to eat; doing chores; gets lost or confused when driving or using public transpiration: he can't keep up with managing money well; his short term memory is bad; he gets confused and suffers anxiety when understanding or following directions; it is hard to stay on task; he becomes paranoid and cannot be around people at all which he claims caused him to miss class and drop a semester from school even though the school and teachers worked with him. The SSA records also contained handwritten PTSD treatment notes from J.M., with S.F.A.S.U. for treatment sessions from January through April 2009. An undated set of notes, for which no author was identified, states that that concerning his ADLs the Veteran has problems with personal hygiene, no one helps with his meals, and his sister and dad help with chores, though he can go away from home alone, and is able to drive by himself. Socially, he was noted to have become withdrawn from others and does not do any activities. When he is stressed, he goes to a quiet place away from people where he uses breathing control exercises. He also was noted to have problems remembering to get things done, completing tasks, and making decisions. VA Treatment records As noted above, the Veteran's record contains a very large number of encounter notes and pages of documents. Below are sample VA treatment encounter notes which the Board feels represent and capture the Veteran's overall condition for the period of time noted, as well as any progression or continuation of various symptoms. These notes also highlight the often inconsistent and sometimes conflicting symptoms exhibited, including as they relate to other evidence, such as medical evaluations, and his documents submitted in support of his claims. November 14, 2006, the Veteran was attending SFA University as a senior, he attempted to work but finds employment greatly increases his symptoms, and he is somewhat socially active, but much less than desired due to his symptoms. The Veteran claims to continue to experience intrusive thoughts daily and nightmares 1 to 4 times monthly, though his flashbacks have gradually decreased in frequency and severity with use of his prescribed medications. The Veteran notes he is sometimes able to sleep as much as 4 hours at night, however the amount of sleep is often much less, and he states he is hypervigilant to sleep, especially during storm. He reports daytime fatigue. He denies suicidal and homicidal ideation. November 19, 2008, the Veteran stated he is 42 years old and unable to hold a job due to his unstable mental health. He denies manic symptoms currently including 'hyperactive mood, irritability, inflated self- confidence, insomnia with little need for sleep', increased talkativeness, racing thoughts, increased energy, or risky behaviors. He states that he sleeps through the night but wakes with depressed mood that persists throughout the day. The Veteran reports he has experienced some brief passive suicidal but adamantly denies any suicide plan. September 26, 2011 the Veteran was employed full time at B.C., working the night shift on a 3 days on and 2 days off schedule which he is managing the schedule fairly well. He felt comfortable enough to discontinue SSA disability. The Veteran reported that he continues to enjoy working and getting away from his apartment. October 19, 2011 in a telephonic session the Veteran claimed he had worsening symptoms including hallucinations with names and shadows, causing paranoia. He claimed he is unable to drive due to poor concentration, which was the reason he could not meet in person for this appointment. October 20, 2011 the Veteran claimed worsening symptoms with increased anxiety, restlessness, hyperactive mood, pressured speech, racing thoughts, poor sleep, and irritable mood. He also claimed recurrences of audio and visual hallucinations the day prior. The Veteran denied feeling sad, depressed, or hopeless. March 2, 2012, the Veteran reported he had been doing fairly well, he was employed, and he has been able to maintain a house he likes. Socially he felt that he was managing his PTSD symptoms well but was having relationship problems described as a recurring pattern of intense, exciting connections with new women, really enjoying their company, looking forward to seeing them, and then waking up one morning and he just feels nothing for them any longer. December 20, 2012 the Veteran plans to get married in May to his girlfriend with whom he has been living for the past 5 months and they seem very compatible. She is a nurse, and he claims she is understanding of his symptoms. He planned to change his employment status at B.C. to on call starting next month. He claimed full time employment was too stressful and often triggered his mania symptoms. He planned to return to college next semester and complete 12 of the remaining credit 15 hour needed to complete his degree. April 28, 2013 the Veteran continues with his plans to marry his girlfriend after she completes her degree in May. He dropped his college classes and plans to change his major to criminal justice next fall. He decreased his on-call work to days only, with 2 days this month and expects 3- or 4-days next month. August 1, 2013 the Veteran continues his employment with B.C. as on-call staff and continues to reside with his girlfriend who he plans to marry in April. He believes he and she are very happy together despite a 20-year age difference. He stated that the week before he experienced a flashback while driving home from work after he spoke with a patient who detailed his experiences as a contractor in Afghanistan. The Veteran stated he had subsequently experienced intrusive memories of his own tour and believes this likely provoked the flashback and visual hallucination. March 7, 2014 the Veteran continues to work part time at B.C. and hopes to eventually work in administration after he obtains a degree. July 9, 2014 the Veteran reported he was married in April and is very happy with his wife and they plan to start a family sometime next year. The Veteran plans to start college again in the fall to complete his degree and should graduate next August. He quit his job at B.C. and doesn't anticipate working again until after graduation. September 24, 2014 the Veteran was anxious and engaging in catastrophic thinking after starting an EMT classes the previous month, so he decided to quit. He stated his mood symptoms have been more stable over the past 2-3 weeks. October 24, 2014 the Veteran was still unemployed and continues to reside with his wife. He quit the EMT program as previously planned and stated he is now a "house husband." He works to keep the house clean, meals cooked, and errands run so his wife can complete her BSN. He reported once monthly recurrences of mania symptoms including insomnia, racing thoughts, and hyperactive mood. He stated he is active during the day and enjoys spending time with his wife, riding his motorcycle, and going to the gym. The Veteran expressed a desire to change his mood stabilizer. December 22, 2014 the Veteran claimed that he struggles to maintain the same job for more than one year before getting fired. The also claimed anxiety regarding sexual performance and struggles to maintain romantic relationships, despite having been in the relationship for approximately two years. The Veteran described his spouse as "supportive" and "understanding" and identified that the major source of concern in his marriage is regarding the Veteran's significant loss of interest in engaging in sexual activity. The Veteran identified a pattern in his life with relationships and jobs going well for approximately one year before ending. The Board notes that at this time the Veteran admitted his marriage had already lasted two years and that as of the date of this decision, 7 years later, the evidence is that he is still married. May 08, 2015, the Veteran was unemployed and married, but he claimed intimacy issues. He stated he had no problems sleeping 8 hours most nights as his medications help. June 18, 2015 the Veteran was unemployed and married and lives with his wife with whom they have plans to get pregnant. The Veteran was working a few hours weekly as a gunsmith for a friend. He was not interested in full time employment as he believed it tended to provoke his manic symptoms. He was experiencing intermittent sleep. November 20, 2015, the Veteran was unemployed, and he continued to reside with his wife. He planned to return to school next the semester as he hoped to complete a degree in criminal justice, which he needs 32 credit hours to finish up. He stated he was depressed and irritable with his mood gradually increasing over the past 2 months. He felt depressed because he can't hold down a job with his bipolar. His functional ability was noted to be independent with his ADL's. May 2, 2016 the Veteran withdrew from SFA the week prior as he stated he was failing both classes and feared his grades would adversely affect his chances of entering a graduate program. He stated he hoped to try again in the fall. His functional ability was noted to be independent with his ADL's. Except for noted specific instances, the Veteran was consistently considered to be functionally independent with ADLs throughout his VA treatment. There were no recommendations by his VA medical providers for him to seek outside assistance because of an inability to perform ADLs. VA examinations The Veteran was provided a VA psychological evaluation in June 2004. During this evaluation, the Veteran advised having been medically separated from the military due to TPSD and back problems. He stated symptoms of being suicidal with claims that he was hospitalized on two occasions, after which they diagnosed him with bipolar disorder and identified several prescribed medications. He also indicated a more recent third hospitalization. Additional symptoms include chronic severe sleep problems, including that sometimes he goes for days without sleep, suicidal ideation, difficulties with stress management, and problems with maintaining social relationship, including with his family. Otherwise, he exhibited clear thought and problems solving abilities, was cognizant of his surroundings and exhibited knowledge of and memory of current events. The VA examiner indicated that he gets relief on medication, but that the effects of his symptoms indicate he is not able to function on a job, with poor social functioning. His thought process and communication skills were stated to not be impaired. Impact on ADL's noted that he was able to prepare his own meals, that he isolates from others and is not able to get help from his family. The Veteran was provided a VA examination in January 2009. The Veteran reported that he will hallucinate and hear voices when he does not sleep well. He also reported impaired memory and paranoia as well as racing thoughts, irritability, and pressured speech. He was divorced and did not have a significant other or children. He had a good relationship with his sibling. The examiner noted mood swings, depressed affect, and slightly pressured speech. There was abnormal speech which occurred intermittently. Panic attacks were present and occurred more than once a week. The Veteran had difficulty with sustained concentration. He had passive thoughts of death but he had no intent or plan to end his life. The examiner reported that the Veteran was intermittently unable to perform activities of daily living because of his mood swings when depressed. He had not difficulty maintaining physical health or understanding commands. He was unable to establish and maintain effective work/school and social relationships and had difficulty maintaining effective family role functioning. He had thoughts to injure himself or others but there was no imminent threat at the time. A VA psychological evaluation (not PTSD) was provided in September 2011, which did confirm diagnoses of PTSD and bipolar disorder with symptoms which are not able to be differentiated between the 2 diagnoses. Despite this, the VA examiner opined that the Veteran's work and social impairment is largely caused by his PTSD symptoms. The Veteran was not in a relationship at this time and stated that his relationships do not last long due to his anxiety. He was at this time attending college with 3 semesters left before he graduated. He denied problems getting along with his professors or classmates. The Veteran was working full time but indicated the stresses of the job exacerbated his PTSD symptoms and indicated he would try the night shift due to less interactions and activity. His PTSD symptoms reportedly included intrusive thoughts and nightmares, distress and physical reactions to reminders, avoidance of news, fast food restaurants (smells), people, and gun ranges, feeling distant from others, feeling emotionally numb, difficulty with sleep, easily irritated, panic attacks, hypervigilance, and increased startle reaction. His bipolar disorder symptoms included depressed mood, changes in appetite, changes in energy, feelings of worthlessness, problems with concentration as well as mood swings, not sleeping for days, pressured speech, increase in goal directed behaviors, episodes of excessive spending, and suicide ideation. He denied thoughts of homicide and stated he does not act on thoughts of suicide because of his niece and nephew. The examiner opined that the Veteran's panic attacks are symptoms of his PTSD rather than Panic Disorder and that it is his PTSD which causes him most of his distress and functional impairment. The examiner indicated the Veteran's social and occupational impairment to be with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning. On VA examination in November 2015, the Veteran reported an estranged relationship with his wife, which the examiner noted he was separated but still legally married. He has three close friends who he states "understand why I am the way I am" though he claims difficulties getting close to people, including his wife. He reported that his typical day consisted of maintaining his home and walking outside. He spent his free time going to coffee shops. He was noted to be unemployed for 2 years. The Veteran stated that his most recent job was as a mental health technician at B.C. where he claimed problems in getting along with coworkers or supervisors with no physical violence but escalating verbal altercations. The examiner noted that the Veteran's mental health symptoms consisted of 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 worklike setting. The examiner opined that the Veteran's PTSD with bipolar disorder was manifested by occupational and social impairment with reduced reliability and productivity. The Veteran's 100 percent evaluation is based upon a VA examination on October 22, 2018. He continued to have nightmares and hallucinations. He also reported severe anxiety and panic as well as feelings of guilt and fearfulness. The examiner documented his mental health symptoms as depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a worklike setting, inability to establish and maintain effective relationships, and persistent delusions or hallucinations. The examiner further opined that the Veteran's PTSD is manifested by total occupational and social impairment and his level of impairment was severe. The Board notes that the evidence shows that the Veteran was continually on prescribed medication for his mental health issues prior to and throughout the appeal period; and that he consistently maintained that he took these medications when and how prescribed with only a few exceptions; and, notably, that he actively engaged with his treating medical providers in describing their impact and efforts to adjust the medications to optimize their effectiveness. Other Buddy statements dependents, etc. The Veteran submitted a written statement in support of his claim, received by VA on December 10, 2008. The Veteran claimed that his PTSD and bipolar symptoms have gotten worse since he separated from the military beginning with intrusive thoughts leading him to mis more and more work due to paranoia, mood changes, hallucinations, and no sleep. Beginning in 2004 he became unable to work, including on his family's ranch but the stress would restart his cycle of paranoia and delusions which impacted his familiar relationships almost to the point of estrangement. He then started college which helped initially but he eventually was not able to attend classes on a regular basis and then stopped taking classes. The Veteran indicated that since he returned from the Gulf War he has lost everything, including his marriage, home, friends, money, and almost his family. He did acknowledge that he sees his doctor, takes his medications when and how they were prescribed. He stated that he cannot hold a job, relationship, or anything else. The Veteran submitted another written statement, dated November 16, 2009. In this statement, the Veteran did not provide many details concerning his current mental state, occupational status or social relationships. Those which he did were generalized summaries of his past history and conjectures what would happen to him if VA did not quickly grant his claim. In this statement the Veteran explained that he was providing VA with copies of records from his family and health care providers, which he asserts VA lost or did not consider, as well as complaining that VA is seeking his SSA records, despite his assertion that his SSA disability was granted primarily on his VA and military treatment records. He referenced that hs medical records we with Fort Drum, and VA facilities in Dallas, Waco, and Lufkin Texas. He requested that VA just call SSA to make its determinations. While the Board is sympathetic to the Veteran's frustration at the process and time it takes VA to review his case and make its determinations, the fact is that VA review of his claims much different and not dictated by SSA claim determinations. Also, the Veteran was then receiving medical treatment and care through VA facilities. As part of his April 2012 Form 9 Appeal to the Board of Veteran's Appeals, the Veteran stated that he believes he is entitled to a higher rating for PTSD as he has intermittent periods when he is unable to perform ADL's (not specified) where he misses work, has memory loss, loss of employment, loss of marriage, his home, and most all of my personal relationships. The Veteran's father submitted a written statement, dated November 7, 2008, to support the Veteran's claims. He claims that the Veteran's condition is getting worse, and that due to his paranoia he has withdrawn from family and friends, and he has auditory and visual hallucinations. The Veteran was reported to neglect his personal hygiene and not eat or have food available for himself. He has let his personal appearance drop in that he no longer showers or shaves on a regular basis which he blames on lack of sleep and general feelings of not caring. He related 2 incidents where the Veteran had to seek emergency medical care for what appears to have been anxiety attacks. His father noted that the Veteran had no food in his home when he returned from the hospital and his home was in "chaos." He states that he asked someone to check in on the Veteran, though it is unclear if he actually paid this person to do so as he stated that he believed that at sometime he may have to hire someone to do so. This person helped to make sure that he goes shopping if he needs food, and that he cleans his house if needed. He described her as like a nanny who makes the Veteran keep himself and home clean. Finally, he stated that the Veteran cannot keep a job and is becoming more dependent. The Veteran' sister submitted an October 19, 2008 statement in support of his claim. She identified his symptoms to include irrational behavior, irritability, neglect of his house cleaning and personal appearance, difficulties in personal relationships, including his family, paranoia, hallucinations, isolation, confusion, and memory loss. He also articulated thoughts of suicide. She claimed the Veteran cannot was not able to keep a regular job or maintain his finances such as bills. Veteran submitted a VA Form Declaration of Status of Dependents, dated January 24, 2020, in which he indicates that he is married and lives with his spouse and two children. In an earlier form submitted in December 2015, the Veteran advised that his marriage began in April 2014 and that he lives with his spouse. This is consistent with the Veteran's statements made during his VA treatment. Occupational - Employment History In his SSA Work History Report, dated May 2, 2004, the Veteran identified his post-service jobs to include working as a nursing technician at a hospital from October 2001 to October 2003, and as a teacher's aid from October 2003 to October 2004. The Veteran further described his job as a nursing technician as full-time working 8 hours per day, and that his duties included medicine checks and ensuring the well-being of the patients, including lifting them and transferring them from their bed to a chair or bathroom, using technical knowledge and skills, and performing tasks such as writing reports. As a teacher's aide he typed and performed data entry functions as well as manual tasks. In his Application for Increased Compensation Based on Unemployability, dated December 5, 2008, the Veteran only lists several employers, however, only two different employers were listed for employment in 2004 or later. The employment prior to that was for military service between December 1998 to August 2001. The first was as a full-time technician working 40 hours per week at ETMC between May 2002 and September 2004, for which he indicated he lost between 60 to 70 hours of work due to his illness. The second was as a full-time employee at K.I.S.D. working 40 hours per week between September 2004 and December 2004 for which he lost 20 to 30 hours due to illness. He claims to have left this position due to his illness. He did not try to find other employment thereafter due to his illness. In February 2009 the Veteran's employer, K.I.S.D., provided information on the Veteran's employment. This employer indicated that the Veteran began is employment as a life skills classroom aide on September 15, 2003 which ended on January 16, 2004, with no loss of work time in the 12 months prior to his last day of work. The Veteran was noted to have worked 7.5 hours daily for a 37.5-hour work week. No concessions were made to the Veteran due to his disability and he was noted to have resigned with no reason given. The form was signed by the employer's payroll and benefits officer. The Veteran's employer, ETMC, submitted to the VA a letter dated April 10, 2009, which indicated that the Veteran worked there between April 1996 through May 1998, and again from December 27, 2001 to December 1, 2003, working as a mental health technician. The letter was signed by a human resources assistant. Later, in May 2009, VA received a completed Request for Employment Form from ETMC, prepared by the HRIS Manager. In this form, ETMC confirmed the Veteran's relevant employment from December 21, 2001 through December 1, 2003, where he worked as a mental health technician/ monitor technician, at 40.62 hours per week on average. There was no response to whether he had lost any time from work. ETMC also indicated that the Veteran was not given any concessions due to disability and that his personnel records did not indicate he had any disabilities. The reason for his termination was stated to be his resignation of full-time e employment and that he never worked "PRN (as needed)." In his Application for Increased Compensation Based on Unemployability, dated December 9, 2015, the Veteran only lists as employment within the last 5 years, his employment at B.C., in Lufkin, Texas. The Veteran claimed that his employment there was from 2009 to 2013, without giving specific dates for any of the requested dates for In response to the request to provide the date his disability affected his full time employment, the Veteran only entered 2013. He similarly entered 2013 when asked about the date he last worked full time and when he became too disabled to work. Though entering 40 hours as the number of hours he worked, in the remarks sections he stated this work was "part-time, full-time, then part-time" without further specifics. The Veteran indicated "Yes" to whether he left this job due to his disability. The Veteran's last employer, B.C., submitted the completed Request for Employment Information Form in January 2016. They verified his employment from June 1, 2011 to April 4, 2014, as a full-time mental health specialist working 40 hours per week. There was no response a dashed line - to either the amount of lost work time in the last 12 months or whether he was allowed any concessions due to disabilities. The reason for his termination was that he resigned. The Veteran completed 3 years of college but claims that he had to drop out due to his PTSD. Analysis After reviewing the evidence of record, and giving the Veteran the benefit an any reasonable doubt, the Board finds that for the entire appeal period, the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission most closely correspond to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. This equates to a 70 percent disability rating, but no more, for the entire appeal period to October 22, 2018, where is assigned 100 percent disability rating will not be disturbed. The Board finds that from the beginning of the appeal period, the Veteran has exhibited persistent thoughts of suicidal ideation; near-continuous manic and depressive episodes affecting his ability to function independently, appropriately and effectively; impaired impulse control including irritability; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances related to work and school settings; chronic and severe sleep problems; persistent, though intermittent hallucinations in that the Veteran often denied having hallucinations; and an intermittent inability to establish and maintain effective relationships. Additionally, while there may be some inconsistent and conflicting evidence, the Board finds to be most probative the statements made by the Veteran to his treating medical providers, more so than the statements asserted in his documents submitted to directly support his VA and SSA claims, or the examinations given also for that purpose. The Board finds the statements made during treatment sessions to not only be given for the purpose of obtaining the most effective help with his then current medical conditions, but they are also mostly consistent with his occupational and social history, which includes what occupational abilities the Veteran was able to perform. The Board finds the fact that none of his employers indicated that he was provided special consideration for any disability and that he was not left go for an inability to perform his job to be very significant. The Veteran is not entitled to a total 100 percent evaluation during this period as he did not exhibit symptoms which caused total occupational and social impairment. Socially, the Veteran was able to maintain a continued relationship with both his father and sister. He also indicated that he had 3 good friends who understood him, and he has been married to the same wife since April 2014. He also indicated that he did not have problems with authority and that he got along with fellow students and his teachers worked with him to help him at school. None of his employers indicated that he had any relationship problems which negatively impacted his work. Occupationally, the Veteran was able to maintain almost three full years of employment with B.C. which listed his employment from June 2011 to April 2014 as a full-time mental health specialist working 40 hours per week. The Veteran stated that he quit his job and that he did not plan to work again until he graduated from college. He enrolled in classes to become an EMT after he quit B.C. The evidence does not support a finding that the Veteran was a persistent danger of hurting self or others; showed gross impairment in thought processes or communication; exhibited grossly inappropriate behavior; exhibited memory loss for names of close relatives, own occupation, or his own name; or that he was consistently disorientated to time or place. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, the Veteran is granted a rating of 70 percent disabling beginning April 5, 2004 is granted. The Veteran's rating of 100 percent disabling for PTSD with bipolar disorder beginning October 22, 2018, is not disturbed. 2. Entitlement to TDIU prior to December 10, 2015. The Veteran claims that he is entitled to TDIU prior to December 10, 2015 and beginning April 4, 2010. The Veteran was granted TDIU effective December 10, 2015, which is the date he filed his claim for this benefit. A claim for an increased evaluation includes a claim for TDIU where there are allegations of worsening disability and unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran filed his claim for an increased rating for PTSD in April 2010. VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disability or disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Under 38 C.F.R. § 4.16(a), if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric. As per the Board's decision above, the Veteran meets this requirement based on the 70 percent disability fro the entire appeal period. As noted above, the Veteran worked at B.C. until April 4, 2014, when he voluntarily resigned. Employment information from B.C. indicated that he worked full time. The Veteran indicated that he resigned so that he could continue his schooling. See VA treatment note July 9, 2014. The Veteran was thereafter enrolled in classes to become an EMT, but he claims that due to his PTSD and bipolar symptoms he quit in September 2014. See VA treatment notes dated September 24, 2014. He has not worked since. Based on the evidence of record, and giving the Veteran the benefit of any reasonable doubt, the Board finds that the Veteran was able to maintain gainful employment through April 4, 2014, as is evidenced by his 3 year employment with B.C., for which there is no indication of his inability to perform his job requirements and that he voluntarily resigned to pursue continued education, and that he stated he did not plan to again work until he graduated. There is no indication that the Veteran sought additional employment during this period. The Veteran was actively engaged in his educational endeavors until September 2014. The earliest date on which it is established that the Veteran may not have been able to continue his education due to his PTSD and bipolar symptoms is recorded in his VA treatments notes for his medical sessions on September 24, 2014. While there are recorded opinions that it is the Veteran's inability to perform in an occupational setting, which pre-date September 2014, the significant fact remains that the Veteran was employed on a full time, or intermittent part time basis, which was of his own choosing, and he resigned due to his decision to pursue additional educational pursuits. There were no indications form his employer that he was unable to perform his work requirements due to his PTSD. Therefore, the Board finds that, in giving him the benefit of any reasonable doubt, the earliest date which establishes his inability to pursue gainful employment is September 24, 2014, when it was recorded that he was unable to complete his educational pursuits due to his PTSD. The Board finds that, based on the medical opinions in evidence, it is his PTSD symptoms which have rendered him unemployable. (Continued on the next page) Therefore, the Veteran is granted entitlement to TDIU, based on his PTSD symptoms, effective September 24, 2014. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bannach, 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.