Citation Nr: 21040800 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-46 691 DATE: July 7, 2021 ORDER Entitlement to increased disability ratings for posttraumatic stress disorder (PTSD), in excess of 30 percent prior to October 24, 2016; and in excess of 70 percent thereafter is denied. Entitlement to a total disability rating for individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to October 24, 2016, the severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. Since October 24, 2016, the severity, frequency, and duration of the Veteran's PTSD symptoms have not more closely approximated total occupational and social impairment. 3. Prior to October 24, 2016, the Veteran did not meet the schedular criteria for TDIU; and the exceptional circumstances that would warrant referral for extraschedular consideration were not present. 4. Since October 24, 2016, the Veteran's service-connected disabilities do not prevent him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for service-connected PTSD prior to October 24, 2016, and in excess of 70 percent since October 24, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for establishing entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to September 1971. These matters are on appeal of January 2016 and November 2016 rating decisions. In April 2017, the Veteran filed an application for TDIU as due to his service-connected PTSD that was denied in a June 2017 rating decision. While the Veteran requested reconsideration of his claim for TDIU in November 2017 (which is currently pending adjudication by the Agency of Original Jurisdiction (AOJ)), Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), provides that TDIU, when reasonably raised by the record, is part of any claim for an increased rating. As the issue of TDIU has been raised by the record, it has been included as a separate issue. Following the November 2016 supplemental statement of the case, and also after the January 2017 certification of the appeal to the Board, VA has added additional medical evidence to the Veteran's file. Pertinent evidence is initially reviewed by the AOJ. Additional pertinent evidence that becomes available after the AOJ's supplemental statement of the case but prior to certification to the Board is to be addressed in an additional supplemental statement of the case. 38 C.F.R. §§ 19.31 (b), 19.37(a). After certification to the Board, such evidence must be referred back to the AOJ for initial review. 38 C.F.R. § 20.1305 (c). Exceptions are when the Veteran or his representative waives this review right, or when the Board grants the benefit being sought in full. 38 C.F.R. § 20.1305 (c). Here, the Veteran's representative submitted a letter in August 2020 stating that the Veteran waived prior AOJ review of all new evidence added to the record. Accordingly, appellate review may proceed without prejudice to the Veteran. 1. Increased Disability Ratings for PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings," which are appropriate for any rating claim when the factual findings show distinct time periods during the appeal where the disability exhibits symptoms that warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran and his representative contend that his service-connected PTSD was more severe than the 30 percent disability rating assigned prior to October 24, 2016. They further contend that the severity of his disability since October 24, 2016, warrants a disability rating in excess of 70 percent. The Veteran's PTSD is rated under DC 9411 and the General Rating Formula for Mental Disorders (General Formula) which provides a 30 percent rating for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and/or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and/or inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. The Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must also determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The Veteran was granted service connection for his PTSD at an initial 30 percent rating in a March 2013 rating decision. The Veteran did not appeal that determination and submitted a claim for an increased disability rating for his PTSD on November 19, 2015. A January 2016 rating decision denied his claim for an increased disability rating, and a November 2016 rating decision increased his disability rating for PTSD to 70 percent effective October 24, 2016. VA treatment records dated from November 2014 to December 2015 show the Veteran regularly attended both group therapy and individual therapy sessions for his PTSD symptoms, as well as periodic psychiatric evaluations. On only one occasion during this period, in November 2014, was the Veteran's affect assessed as flat. On another occasion, in February 2015, his affect was assessed as sad. However, the vast majority of the treatment records describe his affect as either mildly animated, animated, or full range during this period. His speech was repeatedly described as normal and his memory was described as good. He was observed to have good concentration as well as insight and judgement. The treatment records further show that his ability to abstract was always intact. His PTSD symptoms were not considered stable during this period, as he continued to have problems with nightmares, sadness, anxiety, problems with crowds and emotional distance. Throughout the period, he endorsed having nightmares 2-3 times a week and denied panic attacks. He further denied having auditory or visual hallucinations, as well as suicidal or homicidal ideation or intent. The Veteran underwent a VA mental health examination to assess the severity of his PTSD symptoms in December 2015. During the examination, the Veteran complained of recurrent nightmares of his service in Vietnam, and of having hit his wife on one occasion during a nightmare. He reported having fears of dying, being buried alive and of confined spaces. He had worked over 30 years as a police officer in Philadelphia, and retired in 2004. Afterwards, he was a driver for 6 years for the CEO of the Temple University Hospital. He had not worked since and reported he became more distressed and emotional after his retirement. He reported he drank every day since he was a teenager and had medicated himself with alcohol but had stopped drinking 14 months prior to the examination. He felt less "jumpy" and apprehensive since he stopped drinking. The examiner noted that the Veteran had symptoms of recurrent, involuntary, and intrusive distressing memories of his traumatic events as well as recurrent distressing dreams related to his traumatic events. He avoided distressing memories, thoughts or feelings about his traumatic events and had an inability to remember important aspects of his traumatic events. He also had feelings of detachment or estrangement from others. The Veteran was hypervigilant, had an exaggerated startle response, sleep disturbance and an exaggerated startle response. His PTSD symptoms also included anxiety, chronic sleep impairment, and mild memory loss. He further had symptoms of excessive guilt and decreased libido. The examiner further noted that the Veteran was married and had 4 adult sons and 6 grandchildren. He reported that one of his brothers, as well as his parents had died, but that he had good working relationships with his remaining 4 siblings. On examination, the examiner found the Veteran's demeanor and responsiveness to questions to be cooperative. His mood was calm throughout the evaluation. His motor behavior was normal, his eye contact appropriate and he was dressed casually and appropriately. His language was adequately expressive and receptive. His thought processes were coherent and goal-directed with no evidence of hallucinations, delusions, or paranoia. He was oriented to person, place, time, and purpose of the evaluation and demonstrated good insight and judgment. The examiner assessed the level of severity of the Veteran's PTSD symptoms as occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. VA treatment records dating from April 2016 to July 2016 show the Veteran continued to regularly attend individual and group therapy sessions for his PTSD symptoms. A May 2016 treatment record indicates the Veteran's mood was mildly anxious and that his PTSD symptoms were not stable. A June 2016 treatment record indicates that while his PTSD symptoms had improved, they were not stable as he continued to experience dreams, anxiety, sadness, problems with crowds and emotional distance. A July 2016 treatment record indicates that his PTSD symptoms had not increased, his mood was not acutely depressed and he had full range affect. He continued to have 1-2 nightmares a week. Throughout this period, there was no evidence of panic attacks, impaired memory, or abstract thinking, or of any circumstantial, circumlocutory or stereotype speech. The Veteran again underwent VA examination of his PTSD symptoms on October 24, 2016. The examiner noted that the Veteran's PTSD symptoms included anxiety, intrusive thoughts/memories/dreams of his traumatic events, avoidance of anxiety-provoking situations and emotional dysfunction. The examiner further noted that the Veteran had attended individual therapy sessions, as well as group therapy sessions twice a month and psychiatric consultation once every 6 months and had been taking Zoloft for the past 2 years. He had not worked in the past 2 years after having been laid off from his last job. The examiner noted that the Veteran had had no change in his family/marital situation since the prior VA examination. The Veteran had symptoms of dissociative reactions, intense or prolonged psychological distress and marked physiological reactions at exposure to internal or external cues that symbolized or resembled an aspect of his traumatic events, as well as persistent and exaggerated negative beliefs or expectations about himself, others or the world, persistent distorted cognitions about the cause or consequences of the traumatic events that would lead him to blame himself or others. The Veteran had markedly diminished interest or participation in significant activities. The examiner found that the Veteran's PTSD symptoms included depressed mood, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner further diagnosed the Veteran with alcohol use disorder in sustained remission. The examiner found that this disorder was related to his PTSD, but that there were no associated symptoms as the Veteran had not consumed alcoholic drinks in 3 years. The examiner assessed the level of severity of the Veteran's PTSD symptoms as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Subsequent VA treatment records dating from October 2016 to April 2017 show the Veteran's PTSD symptoms still included anxiety, sadness, problems with crowds and emotional distance. An October 2016 treatment record indicates the Veteran's mood was pretty good, his affect as full range and appropriate. His speech was clear and goal-directed, and he had normal thought processes. There was no evidence of auditory or visual hallucinations, or of suicidal/violent ideation, plan, or intent. Nor was there evidence of paranoia or delusions. He had good concentration and memory. His ability to abstract was intact, his insight and judgment were also assessed as good. In March 2017, the Veteran reported that he seemed to get really anxious around March due to "anniversary syndrome." However, April 2017 VA treatment records indicate that the Veteran's mood and PTSD symptoms were mostly stable. During this period, there was no evidence of a flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks, or difficulty understanding complex commands. Nor was there evidence of impaired abstract thinking or judgment. A May 2017 VA PTSD examination indicated that the Veteran continued to live with his wife of 45 years and his youngest son was temporarily staying with them. His home life was described as a stable and supportive environment. The Veteran indicated that they enjoyed doing things together, but he did not go places where there were crowds, due to his feelings of wariness and anxiety at those times. He also reported that he avoided taking trips in airplanes due to claustrophobia. He reported that he retired in 2011 after 31 years as a police officer in Philadelphia and 6 years as a driver for the CEO of Temple University Hospital. He reported that he applied for a few jobs after that but remained retired when he did not get any call backs. He was in a VA therapy group that met twice a month, as well as individual therapy once a month, and saw a psychiatrist once every 6 weeks. He reported his prescribed medication was very helpful in reducing his overall level of anxiety. He was also able to sleep approximately 10 hours a night without medications. He reported his symptoms had become prominent since his retirement when he sought treatment. During the May 2017 VA examination, the Veteran reported he had had several panic attacks just before, or while riding in airplanes and avoided planes as much as possible. The examiner found the Veteran was having recurrent, involuntary, intrusive distressing memories and dreams of traumatic events, intense or prolonged psychological distress and marked physiological reactions to exposure to internal or external cues of traumatic events. He also had persistent and exaggerated negative beliefs or expectations about himself, others, or the world. He further had persistent, distorted cognitions about the cause or consequences of the traumatic events, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, hypervigilance, exaggerated startle response and problems with concentration. The examiner found the Veteran's PTSD symptoms also included depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The examiner observed that the Veteran was well-groomed and casually attired. He was anxious. His thoughts were goal-oriented and well organized with no indications of any formal thought disorder. There was no evidence of impaired memory. He denied any suicidal or homicidal ideation. The examiner noted that psychological testing supported the presence of marked anxiety and tension. The examiner assessed the level of severity of the Veteran's PTSD symptoms as occupational and social impairment with reduced reliability and productivity. VA treatment records from May 2017 to November 2017 show the Veteran continued to attend individual and group therapy sessions. Throughout this period, he reported having 1-2 nightmares a week or less. His PTSD symptoms were assessed as mostly stable with continued problems with anxiety, sadness, problems with crowds and emotional distance. August 2017 and September 2017 treatment records show he felt increased anxiety, irritability and depression regarding VA's proposal to reduce his disability rating for PTSD. A December 2017 treatment record indicates that he had a supportive network of friends and family. At that time he denied any issues with memory, concentration, or his ability to focus. Throughout this period, the Veteran's mood and affect were assessed as stable and appropriate. No behavioral abnormalities were reported during this period. Thought processes were normal, there was good concentration and memory. There was no evidence of auditory or visual hallucinations, or of suicidal or violent ideation, plan, or intent. The Veteran had good insight and judgment and an intact ability to abstract. During his January 2018 VA PTSD examination, the Veteran reported living with his wife of 44 years. He reported having good relationships with his wife and 4 adult sons, as well as with his siblings. He denied having any close friends with whom he socialized. He had not worked since he was laid off in 2011. He reported experiencing depressive-related symptoms, including dysphoric moods, anxiety-related symptoms, including excessive apprehension and worry, isolation/social withdrawal, and feelings of hopelessness, irritability, and anger. The Veteran gave a history of having panic attacks but denied having had any in approximately 2 years. He also denied manic symptomatology or thought disorder symptoms. He did report having nightmares and night terrors, flashbacks and re-experiencing events, intrusive memories, avoidance of internal and external cues to his stressors. He also endorsed hypervigilance and having a hyper startle response. The examiner observed that the Veteran's concentration was intact but that he had short-term memory deficits. His mood was dysthymic, and his affect was somewhat restricted or dysphoric. His insight and judgment were assessed as good. The examiner found that his flashbacks/re-experiencing events, intrusive memories, hypervigilance, hyper startle response and irritability might negatively impact his ability to work well with others whether co-workers or clients/customers. The examiner further found that his short-term memory deficits might negatively impact his work performance. The examiner assessed the level of severity of the Veteran's PTSD symptoms as occupational and social impairment with reduced reliability and productivity. VA treatment records dating from February 2018 to March 2021 show the Veteran's PTSD symptoms had not increased or were stable. Most treatment records during this period show he continued to report experiencing 1-2 nightmares a week or less. A July 2018 treatment record indicated that the Veteran had been spending more time inside his house in the last month to avoid hearing fireworks associated with July 4th celebrations. The examiner indicated that he had a mild flare-up of his PTSD symptoms around July 4th but had been generally psychiatrically stable. During this period, the treatment records frequently indicate that his mood was not acutely depressed or anxious. A September 2020 treatment record notes the Veteran missed social interactions due to the coronavirus epidemic. His mood had not been acutely depressed or anxious and he denied any flare-up of his PTSD symptoms. His PTSD group therapy sessions had been stopped due to coronavirus. He had no acute complaints and was found to be psychiatrically stable. In December 2020, he reported being cautious about things. His memory and concentration appeared grossly intact, his mood appeared euthymic and his affect was congruent. Throughout this period there was no evidence of delusions, auditory or visual hallucinations or paranoia. He consistently denied suicidal or homicidal ideation. His memory and concentration were repeatedly described as appearing grossly intact. The Veteran most recently underwent VA examination to evaluate the severity of the his PTSD symptoms in June 2021. At that time, he reported having dreams approximately 2 times a week, and intrusive, distressing memories 3-5 times a week for minutes at a time. He reported that he thought about people he served with who were killed every Memorial and Veterans Day. He further reported avoiding crowds and firework displays, helicopters and war movies, as well as ethnic Asian restaurants and people speaking in Chinese or Vietnamese. The Veteran related that he had a good relationship with his wife of 48 years and their 4 sons. One son and his family were living temporarily with the Veteran while their home was being built. He talked with his other sons 2-3 times a week. He talked with his sister and 1 brother once a month and to another brother once a week. He had not talked to another brother for 2 years due to that brother's not attending family functions. The Veteran denied having friends but reported that he rather had acquaintances. The Veteran reported last working in 2011 when he was laid off. He reported having a difficult time dealing with strangers in any situation, including work. He also reported being anxious and hypervigilant in crowds and having difficulty falling asleep. The examiner in assessing the Veteran's concentration noted that his remarks repeatedly drifted off topic. His symptoms included depressed mood, anxiety, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships. He denied any suicidal or homicidal ideation. The examiner assessed the level of severity of the Veteran's PTSD symptoms as 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. Prior to October 24, 2016 Prior to October 24, 2016, the Board finds that the frequency, severity, and duration of the Veteran's PTSD symptoms did not result in the level of impairment required for a disability rating of 50 percent. Instead, the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms associated with the currently assigned 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent disability rating. The December 2015 VA examiner did not find that the Veteran's symptoms rose to the level that would result in occupational and social impairment with reduced reliability and productivity, but rather that his occupational and social impairment was due to mild or transient symptoms. The examiner found that the Veteran's PTSD symptoms did include anxiety, mild memory impairment, detachment, or estrangement, as well as avoidant behavior, hypervigilance, and a hyper startle response. Except for one treatment record, there was no evidence of a flattened affect during this period, nor was there evidence of any panic attacks, difficulty understanding complex commands, impaired judgment, or abstract thinking, as contemplated by a 50 percent rating. His noted symptoms of sadness, anxiety, chronic sleep impairment and mild memory loss are clearly contemplated by the currently assigned 30 percent disability rating. During this period, although he endorsed being social isolated, detached or estranged, the Veteran repeatedly described having good relationships with his wife, 4 sons, and 3 siblings. Although he had not worked since 2011, he consistently reported that he was laid off from this position and there is no evidence that he was let go because of his PTSD symptoms. The Board acknowledges the Veteran's assertion that he is entitled to a higher disability rating and his competent and credible lay statements describing his symptomology. Nevertheless, even considering these statements, the weight of the medical and lay evidence simply does not show occupational and social impairment with reduced reliability and productivity prior to October 24, 2016. Moreover, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have. The Board has weighed all the evidence and finds that the December 2015 VA examination, and the VA treatment records for this period more persuasive and probative regarding the severity level of the Veteran's PTSD symptoms. The VA examiner, who is a psychologist, and the additional VA mental health providers who treated the Veteran, performed medical status examinations, and recorded their contemporaneous observations during such treatment. The December 2015 VA examiner further reviewed claims file in evaluating the Veteran. In light of the foregoing, the frequency and severity of the manifestations of the Veteran's PTSD symptoms prior to October 24, 2016, did not result in impairment greater than the 30 percent level assigned. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and a disability rating in excess of 30 percent for service-connected PTSD prior to October 24, 2016, is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Since October 24, 2016 Since October 24, 2016, the Board finds that the frequency, severity, and duration of the Veteran's PTSD symptoms does not result in the level of impairment required for a disability rating in excess of 70 percent because the evident of record during this period does not indicate that his PTSD symptoms caused total occupational and social impairment during this period. Although the October 2016 VA examiner found that the Veteran's PTSD symptoms caused occupational and social impairment with deficiencies in most areas, there is no evidence of gross impairment in thought processes or communication during this period. Likewise, the evidence of record for this period shows the Veteran consistently denied auditory or visual hallucinations, as well as suicidal or homicidal ideations. His hygiene was always found to be adequate and he was never disoriented. There is no indication that his behavior was grossly inappropriate or that his was in persistent danger of hurting himself or others at any time during this period. There is also no evidence in the record from October 24, 2016, f that the Veteran's memory problems most nearly approximate memory loss for the names of close relatives, his own occupation, or his own name. He has also maintained good relationships with his wife of more than 45 years, his 4 sons and his siblings during this period. The Veteran has never manifested symptoms that are of similar severity, frequency, and duration as those contemplated by a 100 percent disability rating, to include total occupational and social impairment. The Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for an increased evaluation from July 1, 2011, forward. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.21. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and a disability rating in excess of 70 percent for service-connected PTSD since October 24, 2016, is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. 2. TDIU The Veteran contends that his service-connected PTSD symptoms have rendered him unemployable, thereby entitling him to the award of a TDIU. He asserts that he is unable to apply for employment because his symptoms continue to worsen, particularly that his is very anxious and forgetful. Total disability ratings for compensation may be assigned where the schedular rating is less than total and the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a). Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16 (a). Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service connected for PTSD, rated as 30 percent disabling prior to October 24, 2016, and 70 percent thereafter. He is further service connected for malaria and for a right thigh scar, both rated as 0 percent disabling. Therefore, the percentage criteria for a TDIU under 38 C.F.R. § 4.16 (a) are not satisfied prior to October 24, 2016. Even though the percentage requirements of section 4.16(a) are not met prior to October 24, 2016, if the evidence establishes that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disability during that period, the case will be referred to the Director, Compensation Service (Director) for extraschedular consideration prior to October 24, 2016. 38 C.F.R. § 4.16 (b). The Court has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The central inquiry in a claim for TDIU is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board notes that the ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). Prior to October 24, 2016 Based on a review of the evidence of record, the Board finds that the weight of the medical and lay evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to follow a substantially gainful occupation. In that regard, he has made no indication that his service connected residuals of cholecystectomy and partial colon resection, which is rated as 10 percent disabling, and malaria and surgical scar and puncture wound scar, which are rated as noncompensable, cause or contribute to his unemployment. His statements at best suggest that his unemployment is due to symptoms related to his PTSD. In his VA Form 8940, Veteran's Application for Increased Compensation Based on Unemployability, received in April 2017, the Veteran indicated that he last worked full-time in March 2011 as a driver. He denied leaving his last job because of his disability or that he received or expected to receive disability retirement benefits. He indicated that he obtained a high school degree and had no other education or training. He further indicated that he had not sought employment since he became too disabled to work. In his earlier VA treatment records and the December 2015 VA examination, the Veteran reported he worked as a police officer for 30 years in Philadelphia, and after retiring worked 6 years as a driver for the CEO of Temple University Hospital. He further reported that he was laid off from that position because the incoming CEO did not require a driver. As noted above, prior to October 24, 2016, VA treatment records, as well as the December 2015 VA examination to evaluate his PTSD symptoms, the Veteran reported symptoms of sadness, anxiety, chronic sleep impairment and mild memory loss, as well as social detachment and estrangement. However, there was no evidence that these symptoms caused any more than occupational and social impairment with occasional decrease in work efficiency. Likewise, the Veteran has not alleged that any symptoms associated with his service-connected malaria of right thigh scar has impacted his ability to secure gainful employment. The Board finds that a TDIU prior to October 16, 2016, is not warranted because the preponderance of the evidence is against a finding that the Veteran's service-connected PTSD alone rendered him unable to secure or follow a substantially gainful occupation prior to October 24, 2016. Neither the Veteran nor his representative have provided any evidence indicating his service-connected PTSD solely rendered him unable to secure or maintain substantially gainful employment prior to October 24, 2016. The medical evidence addressing the functional effects of the Veteran's PTSD on his ability to perform the mental and/or physical acts required for substantially gainful employment prior to October 24, 2016, is relevant to the unemployability determination. There are no medical opinions of record during this period that indicate the Veteran was unable to work as a result of his service-connected PTSD symptoms. Based on the evidence of record, the Board finds that the Veteran's service-connected PTSD did not render him unable to secure and maintain gainful employment prior to October 24, 2016. While the evidence reflects that the Veteran experienced symptoms of sadness, anxiety, sleep impairment, and social detachment and estrangement during this period as a result of his PTSD, it does not indicate that this would preclude him from any type of employment. Although PTSD may have impacted his ability to perform employment as his previous position as a police officer, the record reflects the Veteran also had prior experience as a driver. Such experience would qualify him for a position that would likely enable him to work in a relatively solitary role that would minimize any symptoms associated with his PTSD. Likewise, his prior occupation as a police officer might enable him to qualify for security positions that would not require a lot of social interaction. Additionally, positions as a security person or driver would likely provide income above the poverty level. As such, the evidence reflects that with his history, education, skills, and training, the Veteran would be able to obtain and maintain gainful employment prior to October 24, 2016. Since October 24, 2016 As of October 24, 2016, the Veteran has met the schedular requirements for a TDIU rating as his service-connected PTSD has been rating as 70 percent disabling, since that date. 38 C.F.R. § 4.16 (a). However, the Board finds that a TDIU is not warranted since October 24, 2016, because the preponderance of the evidence is against a finding that the Veteran's service-connected PTSD renders him unable to secure or follow a substantially gainful occupation. It is again noted that no evidence has been presented that any of the Veteran's other service connected disabilities (residuals of cholecystectomy and partial colon resection, which is rated as 10 percent disabling, and malaria and surgical scar and puncture wound scar, which are rated as noncompensable) cause or contribute to his unemployment. The Board acknowledges that the October 2016, May 2017, and January 2018 VA examiners indicate that the Veteran had intense or prolonged psychological distress and marked physiological reactions at the exposure to internal or external cues resembling his traumatic events, and that October 2016 examiner assessed his PTSD symptoms caused occupational and social impairment with deficiencies in most areas, including work, as well as the January 2018 examiner's opinion that the Veteran's PTSD symptom of short-term memory deficits might negatively impact his work performance and that his associated flashbacks, re-experiencing events, intrusive memories, hypervigilance, hyper startle response and irritability might negatively impact his ability to work well with others whether co-workers or clients/customers. However, the Board notes that, despite the examiner's opinion that these symptoms could negatively impact the Veteran's work performance or ability to work with others, the examiner found that the symptoms caused occupational and social impairment with no more than reduced reliability and productivity. Likewise, the May 2017 VA examiner found the Veteran's PTSD symptoms caused occupational and social impairment with no more than reduced reliability and productivity. The most recent June 2021 VA examiner found the Veteran's symptoms caused 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. Further, VA treatment records throughout this period indicate that the Veteran had no behavioral abnormalities, and had normal thought processes with good memory, insight, and judgment. Although he continued to experience symptoms of anxiety and social estrangement, his PTSD symptoms were repeatedly assessed as stable or as not having increased in severity. The Board notes that the Veteran is competent to describe symptoms and impairments of his service-connected disability. However, it is unclear what PTSD symptoms, other than anxiety, the Veteran attributes to his inability to seek employability. Moreover, it is clear that the Veteran voluntarily retired from his position as a police officer and that his subsequent position as a driver was not terminated due to his PTSD symptoms. Further, although indicating that his symptoms might negatively impact the Veteran's work performance, there are no medical opinions of record that indicate the Veteran is unable to work as a result of his service-connected PTSD symptoms. Based on the evidence of record, the Board finds that the Veteran's service-connected PTSD only would not render him unable to secure and maintain gainful employment since October 24, 2016. While the evidence reflects that the Veteran would have difficulty maintaining employment that would require working with co-workers or customers, there is no indication that his PTSD symptoms would preclude him from a security position or as a driver, both positions that would not necessarily require much social interactions with other. His employment history as a policer officer and as a driver indicates that he would have the necessary skills to obtain such positions. The evidence also reflects that the Veteran has the mental ability to perform the types of activities required when considering factors such as memory, concentration, insight, and judgment. Additionally, a position in security or as a driver would likely provide income above the poverty level. As such, the evidence reflects that with his history, education, skills, and training, the Veteran would be able to obtain and maintain gainful employment. In view of the above, the weight of the evidence is against the claim for a TDIU since October 24, 2016. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. J. Wells-Green 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.