Citation Nr: 21040885 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-14 040 DATE: July 7, 2021 ORDER The claim of entitlement to an initial evaluation of 70 percent, but no higher, for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and depression, is granted. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. During the appeal period, when not rated at 100 percent disabling, the Veteran's acquired psychiatric disorder, to include PTSD and depression, (hereinafter an acquired psychiatric disorder) manifested as occupational and social impairment with deficiencies in most areas. 2. The Veteran received a total disability rating for his acquired psychiatric disorder from September 13, 2012, to November 30, 2012, from July 31, 2017, to September 30, 2017, from October 18, 2018, to November 30, 2018, and from December 31, 2018, to January 31, 2019. 3. The combination of the Veteran's service-connected disabilities precluded him from maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to an initial evaluation of 70 percent, but no higher, for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.29, 4.130, Diagnostic Code (DC) 9411. 2. The criteria to establish a claim of entitlement to a TDIU have been met. 38 U.S.C. §§ 1114, 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from August 1997 to December 1997, and from January 2005 to April 2005. These matters are before the Board of Veteran's Appeals (Board) from the May 2012 and January 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for major depressive disorder (MDD), granted service connection for PTSD at 30 percent disabling as of May 24, 2011, and then rated the Veteran's PTSD at 70 percent disabling as of August 14, 2012. The Board notes that the Veteran filed for service connection for depression and an increased rating for PTSD, he additionally indicated that his depression was caused by his PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veteran's Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. See also 38 C.F.R. § 3.159 (a)(3). When it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so.). Accordingly, the Board will attribute all of the Veteran's psychiatric symptoms to an acquired psychiatric disorder, to include PTSD and MDD, for the purposes of assessing the severity of that disability. The Board finds that the Veteran submitted statements in July 2012, September 2012, June 2013, and November 2013, that indicated he wanted to withdrawal his appeal for PTSD and often in the same document subsequently requested an increased rating for his service-connected PTSD. Additionally, the Veteran submitted a timely Notice of Disagreement in June 2012 and October 2012, to the May 2012 rating decision which assessed his PTSD at 30 percent disabling. As such, the Board finds that the Veteran continuously pursued an increase for the initial rating of his acquired psychiatric disorder and shall treat the Veteran's claim as being continuously pursued since his initial claim in May 2011. The Board also finds that the Veteran was scheduled for a hearing on October 25, 2019, of which he did not attend. As of the date of this opinion no documentation has been received by VA from the Veteran indicating a need to reschedule, as such the Veteran's claim will be processed as though the request for a hearing had been withdrawn. No further requests for a hearing will be granted for this claim unless the Veteran provides correspondence indicating a good cause as to why the Veteran did not attend the hearing scheduled. See 38 C.F.R. § 20.704 (d). Entitlement to an initial evaluation of 70 percent, but no higher, for an acquired psychiatric disorder The Veteran contends that he is entitled to service connection for depression. The Veteran also contends that he is entitled to an initial disability rating in excess of 30 percent, prior to August 14, 2012, and in excess of 70 percent thereafter, for his acquired psychiatric disorder. The Board finds that the preponderance of the evidence is in favor of the Veteran's claim for an initial evaluation of 70 percent, but no higher, as discussed below. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question between two evaluations, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping, such as pyramiding, with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When all the evidence is assembled, if there is a balance between positive and negative competent evidence then the issues shall be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran's acquired psychiatric disorder was rated at 30 percent disabling as governed by 38 C.F.R. § 4.130. A 30 percent rating requires 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent disability rating or total disability rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Board notes that the Veteran has received intermittent periods of a total disability rating for his acquired psychiatric disorder pursuant to 38 C.F.R. § 4.29, indicating he required hospital treatment or observation in excess of 21 days for his service-connected disability. As such the Board will not address the Veteran's acquired psychiatric disorder during those periods. Additionally, with this opinion the Veteran is receiving an increased rating for his acquired psychiatric disorder to 70 percent as of May 24, 2011. However, pursuant to AB v. Brown, 6 Vet. App. 35 (1993), the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. Therefore, the Board finds that the maximum benefit has not been awarded as the total disability or 100 percent rating has not been granted for the entire period on appeal. The Board's focus will be only on those periods that are not granted a total disability rating, each time period is addressed below. May 24, 2011, to September 12, 2012 The Board notes that the Veteran was previously rated at 30 percent disabling from May 24, 2011, to August 13, 2012, and was then rated at 70 percent disabling from August 14, 2012, to September 12, 2012. In this opinion the Board finds that the Veteran's disability picture during this entire time period manifested as 70 percent disabling. The Veteran received a VA examination in July 2011 with noted diagnoses of PTSD, alcohol (ETOH) dependence, cannabis dependence, and depressive disorder not otherwise specified (NOS). The examiner found that the Veteran's diagnoses were distinguishable, by indicating that his depression and generalized anxiety was attributable to his depressive disorder (NOS) and was based on situational stressors. But then found his occupational and social impairment was not able to be differentiated as the symptoms of irritability and anxiety could be attributable to both PTSD and his depressive disorder. The Veteran reported legal issues dealing with charges of disorderly conduct and phone harassment. The examiner noted that the Veteran endorsed symptoms of depressed mood, anxiety, panic attacks of at least once per week, mild memory loss, avoidance of activities, irritability, sleep impairment, concentration issues, and difficulty establishing and maintaining effective relationships. The Board finds that the VA examination is contradictory in its differentiating of the Veteran's mental health diagnoses and as to that issue has only some limited weight. However, as to the Veteran's symptoms the Board finds that the VA examination is competent, credible, and with significant probative weight. The Veteran received an August 2012 VA examination for his acquired psychiatric disorder that indicated his diagnoses of PTSD, depressive disorder NOS, ETOH dependence, and cannabis dependence. The Veteran reported relationships with his parents, extended family, and his children, but a contentious relationship with his ex-wife and legal issues with child support obligations compounded by unemployment. The examiner indicated an ability to differentiate the Veteran's symptoms between his diagnoses. However, the examiner then noted significant overlap of symptoms of poor concentration, irritability, dysphoria, guilt, foreshortened future, insomnia, and found that all of his diagnoses attributed to these issues. Additionally, the examiner found that his behavioral symptoms were contributed to by his PTSD and substance abuse. The examiner continued to explain that the Veteran's depression and PTSD were exacerbated by his increased feelings of hopelessness and disillusionment of unemployment, skill, and ability. The examiner found that the nightmares, panic attacks, hypervigilance, startle response, intrusive thoughts, were related to PTSD, but that the worthlessness, hopelessness, crying, and anxiety were related to his depressive disorder NOS. The examiner found the Veteran to be occupationally and socially impaired with reduced reliability and productivity, but found they were unable to differentiate the contributions of occupational and social impairment to each diagnosis as the symptoms overlapped and contributed to one another. The examiner documented symptoms of recurrent nightmares, avoidance efforts, memory issues, irritability or outbursts of anger, hypervigilance, difficulty concentrating, and exaggerated startle response as to the criterion for PTSD. However, in the symptoms for rating purposes the examiner noted depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, sleep impairment, impaired impulse control, and difficulty adapting to stressful circumstances. The Board finds that the VA examination is contradictory in differentiating the Veteran's symptoms between PTSD and depressive disorder NOS as the examiner indicated the symptoms overlap and they could not differentiate what contributed to the Veteran's occupational and social impairment. Additionally, the Board finds the examiner's determination of severity as to the Veteran's occupational and social impairment to be contradictory as the symptoms indicated by the examiner indicate a higher level of impairment. As such the Board finds the differentiation and level of severity determined by the examiner to be with little probative weight. However, the Board finds that the symptoms listed and reported to be competent, credible, and with significant probative weight. The Board notes that the Veteran in August 2012 also contacted VA to provide a correction to the August 2012 VA examination and indicated that he had panic attacks 2 to 3 times per week which was why his mental health medications were increased. The Veteran's VA treatment records contained indications of the Veteran's regular psychiatric treatment and documentation from mental health providers that noted the Veteran's symptoms of his acquired psychiatric disorder. In an April 2011 mental health note the Veteran was indicated to have issues with sleep impairment, wanting better relationships with people, avoiding conversations and activities, a restricted affect, irritability, outbursts of anger, concentration issues, paranoia, and an advanced startle response. The Veteran was diagnosed with PTSD and MDD with depressed mood, insomnia, loss of interest, fatigue, and diminished ability to think. In an August 2011 mental health reassessment, the Veteran's symptoms indicated that a residential or inpatient program might be appropriate. In September 2011 the Veteran indicated that he was depressed and continuing to use drink ETOH daily. In July 2012 the Veteran received a mental health diagnostic study that noted severe symptoms of agitation, fatigue, loss of interest, loss of pleasure, with moderate symptoms of sadness, irritability, pessimism, worthlessness, loss of energy, sleep impairment, concentration, and punishment feelings. The Veteran was found to have mild symptoms of suicidal thoughts or wishes and appetite changes. In August 2012 the Veteran indicated an increase in his panic attacks to 2 to 3 times per week, along with increased nightmares, depression, and avoidance behaviors. The Veteran's symptoms were noted as increasing due to legal, occupational, and financial stressors. The Board finds the VA treatment records to be competent, credible, and with significant probative weight. The Veteran submitted statements where he discussed his acquired psychiatric disorder and the symptoms he experienced. In a June 2012 statement the Veteran indicated he was having more frequent panic attacks, nightmares, required an increase in medications for his mental health, avoidance of people and places he used to enjoy, a worsening of his depression, and that he was unable to function on a job for more than two hours. In an August 2011 statement the Veteran reported that his acquired psychiatric disorder caused him to lose his family, employment, and well-being. He noted that he was not able to keep a job longer than 3 to 4 months, he had episodes of homelessness, nightmares, sleep impairment, an inability to get out of bed for months, he endorsed suicidal thoughts, and periods of incarceration due to being unable to pay child support due to unemployability. The Board finds that the Veteran's statements to be competent, credible, and with significant probative weight. The Board finds that the Veteran's disability picture from May 24, 2011, to September 12, 2012, more closely resembles a 70 percent disability rating and not a 30 percent or 50 percent disability rating. The Board finds that the VA examinations, the Veteran's statements, and VA treatment records indicated that the Veteran's acquired psychiatric disorder produced symptoms such as issues with irritability, regular panic attacks, impaired impulse control, difficulty adapting to stressful circumstances, near continuous depression, suicidal ideation, avoidance behaviors, and fluctuating relationships with his family and no friendships reported. In reviewing the totality of the Veteran's disability picture, the Board finds that the Veteran's acquired psychiatric disorder more closely approximates a 70 percent disability rating during this period. The Board finds that the Veteran's disability picture during this period more closely resembled a 70 percent disability rating and no higher. The Veteran did not exhibit such total occupational and social impairment as to have gross impairment of thought processes or communication, he endorsed no delusions or hallucinations, nor grossly inappropriate behavior. There was no finding by any mental health provider that he was a persistent danger to himself or others, and he was able to continue activities of daily living such a managing his own hygiene, spending time with his children, and addressing issues of his own mental health. The Veteran was also found not to be disoriented, nor have such memory loss as to forget himself nor his family. The Board finds that the Veteran's acquired psychiatric disorder more closely met the 70 percent disability rating and did not rise to a total occupational and social impairment during this time period. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs for the claims of the Veteran the claim will be granted on its merits. In this case the preponderance of the evidence is for the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such the Board finds that an initial evaluation of 70 percent disabling, but no higher, from May 24, 2011, to September 12, 2012, for an acquired psychiatric disorder is warranted. September 13, 2012, to November 30, 2012 The Board notes that this period of time the Veteran's acquired psychiatric disability was rated at 100 percent disabling. The Board will not disturb this rating. December 1, 2012, to July 30, 2017 The Veteran contends that he is entitled to an increased rating for his acquired psychiatric disorder. In April 2015, the Veteran received a VA examination that noted the Veteran's PTSD, ETOH use disorder, cannabis use disorder and found that all symptoms were related to his PTSD as was his substance use. The Veteran's severity of his occupational and social impairment was found to decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran reported living with a friend, good relationships with his children, but they were unable to spend the night with him until he was able to find a bigger place to live. He denied any close friendships beyond his roommate who abused ETOH and caused some issues with the Veteran. The Veteran indicated he had not worked since 2010, with his legal issues and substance issues causing difficulties with employment. The Veteran reported fighting with neighbors in 2013 and a driving under the influence (DUI) charge in 2014. The Veteran also reported a fight in 2014 and another physical altercation a few weeks prior. The Veteran was noted as feeling a little depressed and anxious, with panic attacks 4 to 5 times per week, had little interest in things, sleep impairment, nightmares, irritability, avoidance behaviors, mild memory issues, attention and concentration issues, and no major issues with hygiene or self-care. The examiner noted symptoms of depressed mood, anxiety, panic attacks more than once per week, sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances. The examiner also noted linear thought patterns, with a mildly depressed and anxious affect. The examiner found that the Veteran's depression was attributable to his PTSD and psychological stressors and found the inability to secure gainful employment and ongoing legal issues to be a result of his PTSD and substance issues. The examiner further noted the Veteran's ability to perform day to day activities especially in a work setting was moderately impaired. The Board finds the VA examination to be competent, credible, and with significant probative weight. The Veteran submitted a Mental Health Disability Benefits Questionnaire in May 2015 that noted the Veteran's PTSD, MDD, and substance abuse diagnoses and found that the Veteran's symptoms were largely due to his PTSD but his other diagnoses were exacerbated by PTSD. The doctor found that the Veteran's occupational and social impairment met the severity of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran's symptoms were noted as depressed mood, anxiety, suspiciousness, sleep impairment, flattened affect, panic attacks at least weekly or less, disturbances in mood and motivation, difficulty establishing and maintaining effective relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and impaired impulse control. The doctor noted that the Veteran's memory had not been assessed. The doctor also indicated the Veteran was in mental health treatment and likely had the capacity to be employed if his mental health condition improved, but that his current symptoms impaired his ability to work effectively. The Board finds that the Questionnaire above is competent, credible, and with significant probative weight as to the report of symptoms and Veteran's employability. However, the Board notes that the level of occupational and social impairment contradicts the symptoms noted, as such the severity of impairment documented holds limited probative weight. The Veteran received a VA examination in October 2016 that noted his diagnoses of PTSD, ETOH disorder, and cannabis use disorder. The examiner found that the Veteran's occupational and social impairment severity was with reduced reliability and productivity. The Veteran reported he was close with his children, two neighbors, and spoke regularly with his mother, and visited with his parents. The Veteran reported trying to start an online business with no success. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once per week, sleep impairment, disturbances in mood and motivation, and difficulty establishing and maintaining relationships. The examiner noted the Veteran's thoughts seemed logical and coherent, with an appropriate affect, no abnormal behavior was displayed, recall seemed adequate, and denied current suicidal and homicidal ideations. The Veteran was noted as reporting anxiety in crowds, an exaggerated startle response, nightmares, was easily triggered, reported limited interest and hobbies, and had a quick temper. The Veteran was noted as attempting to self-medicate with ETOH and cannibis. The examiner indicated higher than normal rates of absenteeism at work would occur due to his diagnoses and his difficulty around people, that stress issues caused him to leave school, and a possible substance abuse relapse could occur due to stress, and he would have difficulty staying on task. The Board finds the VA examination to be competent, credible, and with significant probative weight. The Veteran's VA treatment records in October 2013 noted a mental health assessment of the Veteran with depressed mood, diminished interest, a decreased appetite, reported insomnia, fatigue, agitation, feelings of worthlessness, sleep impairment, irritability, concentration issues, avoidance of thoughts, hypervigilance with increased startle response, but denied suicidal and homicidal ideations. In June 2014 a mental health note indicated the Veteran reported continued nightmares, sleep impairment, and panic attacks, that he got anxious when he left home, flashbacks, but denied suicidal ideations. The Veteran noted he liked to spend time with his children and wanted to find employment. The doctor's note indicated an increase in mental health medications as well. In December 2014 and March 2015, the Veteran had multiple mental status examinations (MSE) which noted different symptoms such as dysphoric and constricted affect, diminished activities, depressed mood, moderate to fair insight, poor judgment, and moderate risk for future dangerousness. But found that the Veteran endorsed no delusions or hallucinations and had normal speech. In June 2016 the Veteran received another MSE which found his mood to be "a bit down," but found the Veteran to be alert, with organized and relevant speech, no report of hallucinations, delusions, and no suicidal or homicidal ideations (SI/HI). In a November 2016 MSE the Veteran was noted with an anxious mood, no audio or visual hallucinations, no delusions, no SI/HI, with normal speech, and fair insight and judgment. In March 2017, the Veteran received another MSE that noted his euthymic mood, linear and logical thoughts, no SI/HI, no delusions, or hallucinations, with good insight and judgment. The Board finds the Veteran's treatment records to be competent, credible, and with significant probative weight. In June 2013 the Veteran submitted a statement that his PTSD should be increased to 50 percent at least and should include his anxiety and depression as they stemmed from his PTSD. He submitted another statement in November 2013 where he indicated he felt his PTSD was entitled to an increase from 30 percent to 50 percent disabling. In June 2014 the Veteran also submitted a statement indicating that his depression stemmed from his PTSD and caused his inability to work. The Board finds the Veteran's statements to be competent, credible, and with significant probative weight. However, the Board finds that the Veteran's statements as to his acquired psychiatric disorder to be 50 percent disabling to hold limited probative weight. In this case, the Veteran's lay assertions are outweighed by competent and credible medical evidence which evaluated the true extent of his acquired psychiatric disorder. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's condition. For these reasons, greater evidentiary weight is placed on the examination findings regarding the type and degree of impairment. While the Board is sympathetic to the Veteran's report of symptoms, the medical evidence supports a higher evaluation than 30 percent and 50 percent disabling during this time period. The Board finds that the Veteran's disability picture during this period more closely resembles a 70 percent disability rating and not a 100 percent disability rating. The Veteran did not exhibit such total occupational and social impairment as to have gross impairment of thought processes or communication, he endorsed no delusions or hallucinations, nor grossly inappropriate behavior. There was no finding by any mental health provider that he was a persistent danger to himself or others, and he was able to continue activities of daily living such a managing his own hygiene, spending time with his children and parents, and addressing issues of his own mental health. The Veteran was also found not to be disoriented, nor have such memory loss as to forget himself nor his family. The Board finds that the Veteran's acquired psychiatric disorder more closely met the 70 percent disability rating and did not rise to a total occupational and social impairment during this time period. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such the Board finds that the Veteran's acquired psychiatric disorder is entitled to a 70 percent disability rating, but no higher, from December 1, 2012, to July 30, 2017. July 31, 2017, to September 30, 2017 The Board notes that this period of time the Veteran's acquired psychiatric disability was rated at 100 percent disabling. The Board will not disturb this rating. October 1, 2017, to October 17, 2018 The Veteran contends that he is entitled to an increased rating for his acquired psychiatric disorder in excess of 70 percent. The Veteran received a VA examination in November 2017 for his PTSD that noted his diagnoses of PTSD, ETOH disorder, cannabis use disorder and found that the diagnoses were able to be differentiated, but then noted that the diagnoses were not independent of each other, but then found each disorder had distinct symptoms, and then listed all of the symptoms indicated as being part of each diagnoses. The Veteran's occupational and social impairment was noted with reduced reliability and productivity with PTSD listed at severe at 75 percent, ETOH disorder at mild at 25 percent, and cannabis use disorder at 0 percent. The examiner did not explain how the percentages were determined. The examiner noted the Veteran was awarded temporary custody of his teenage son and saw his daughter regularly. He endorsed having some friends and a significant other; but considered leaving her due to her drinking. The examiner found symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less, sleep impairment, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining relationships, and difficulty in adapting to stressful circumstances. The examiner found the Veteran to be with good hygiene, normal speech, no signs of a thought disorder, oriented, mood and affect congruent with being mildly depressed to elated when discussing the future. The Board finds that VA examination to be contradictory as to the differentiation of the Veteran's symptoms and their affect on his occupational and social impairment. However, the Board finds the examiner's documentation of symptoms to be competent, credible, with significant probative weight. The Veteran's VA treatment records in October 2017 and November 2017 doctor notes indicated the Veteran was depressed, sad about life and unemployment, having increased nightmares, having good concentration and motivation, and denied SI/HI. The Board notes that the Veteran in November 2017 reported he left an in-patient treatment program in September 2017 to take custody of his son, and his therapist noted significant concerns as it was highly stressful. The Veteran's treatment records also noted in December 2017 and January 2018 that the Veteran denied having depression, denied SI/HI, had no delusions, hallucinations, had logical thought processes, and an intact memory. In March 2018, the Veteran received a MSE that noted he was oriented, had normal speech, a mildly dysphoric mood, no SI/HI, denied obsessive ideations, denied audio and visual hallucinations, no delusions, no paranoia, no abnormal behavior, and found his judgment and insight was limited. The Board finds the Veteran's VA treatment records to be competent, credible, and with significant probative weight. The Board finds that the Veteran's disability picture during this period more closely resembled a 70 percent disability rating and not a 100 percent disability rating. The Veteran did not exhibit such total occupational and social impairment as to have gross impairment of thought processes or communication, he endorsed no delusions or hallucinations, nor grossly inappropriate behavior. There was no finding by any mental health provider that he was a persistent danger to himself or others, and he was able to continue activities of daily living such a managing his own hygiene, taking custody of his son and managing court proceedings for custody, spending time with his children, and addressing issues of his own mental health treatment. The Veteran was also found not to be disoriented, nor have such memory loss as to forget himself nor his family. The Board finds that the Veteran's acquired psychiatric disorder more closely met the 70 percent disability rating and did not rise to a total occupational and social impairment during this time period. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such the Board finds that the Veteran's acquired psychiatric disorder is entitled to a 70 percent disability rating, but no higher, from October 1, 2017, to October 17, 2018. October 18, 2018, to November 30, 2018 The Board notes that this period of time the Veteran's acquired psychiatric disability was rated at 100 percent disabling. The Board will not disturb this rating. December 1, 2018, to December 30, 2018 The Veteran contends he is entitled to an increased rating for his acquired psychiatric disorder in excess of 70 percent. The Board finds that the Veteran did not receive a VA examination during this period for his acquired psychiatric disorder. As such the Board has relied on the Veteran's VA treatment records to determine the disability rating for the Veteran's acquired psychiatric disorder. The Veteran's VA treatment records during this period indicated MSEs in December 2018 that found the Veteran with good hygiene, regular and slowed speech, anxious mood, euthymic affect, intact memory, fair judgment and insight, linear thought processes, and denied SI/HI, with no hallucinations or delusions. The Board finds the VA treatment records of the Veteran to be competent, credible, and with significant probative weight. The Board finds that the Veteran's disability picture during this period more closely resembled a 70 percent disability rating and not a 100 percent disability rating. The Veteran did not exhibit such total occupational and social impairment as to have gross impairment of thought processes or communication, he endorsed no delusions or hallucinations, nor grossly inappropriate behavior. There was no finding by any mental health provider that he was a persistent danger to himself or others, and he was able to continue activities of daily living such a managing his own hygiene, spending time with his children, and addressing issues of his own mental health. The Veteran was also found not to be disoriented, nor have such memory loss as to forget himself nor his family. The Board finds that the Veteran's acquired psychiatric disorder more closely met the 70 percent disability rating and did not rise to a total occupational and social impairment during this time period. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such the Board finds that the Veteran's acquired psychiatric disorder is entitled to a 70 percent disability rating, but no higher, from December 1, 2018, to December 30, 2018. December 31, 2018, to January 31, 2019 The Board notes that this period of time the Veteran's acquired psychiatric disability was rated at 100 percent disabling. The Board will not disturb this rating. As of February 1, 2019, The Veteran contends that he is entitled to an increased rating for his acquired psychiatric disorder in excess of 70 percent. The Veteran received a VA examination for his acquired psychiatric disorder in June 2020 that noted his diagnosis of PTSD, his struggle adapting to work and poor judgment related to substances. The examiner found that the Veteran had occupational and social impairment in most areas. The Veteran indicated another DUI charge in 2018 and that he continued to use marijuana and ETOH. The examiner noted symptoms of depressed mood, anxiety, panic attacks more than once a week, sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances of mood and motivation, difficulty in establishing and maintaining relationships, and difficulty adapting to stressful circumstances. The Veteran was also noted as having a restricted affect, was oriented, and denied SI. The Board finds the VA examination to be competent, credible, and with significant probative weight. The Veteran's VA treatment records in June 2019 and throughout 2020 noted no audio or visual hallucinations, no delusions, no SI/HI, with intact memory, and fair judgment and insight. In June 2019 the Veteran was noted as having a blunted affect, euthymic mood, normal speech, and organized thought processes. In February 2020 the Veteran reported that there was a physical altercation in December 2019 with his son, and he had continued nightmares, anxiety, but denied audio or visual hallucinations, and denied SI/HI. In March 2020 the Veteran reported auditory hallucinations during withdrawal from ETOH but denied them during any other periods of time. In April 2020 the Veteran was noted as having anxiety, depression, nightmares, sleep impairment, intrusive thoughts, irritability, the desire to stop using substances, and a desire to renew his relationship with his son. The Board finds the Veteran's VA treatment records to be competent, credible, with significant probative weight. The Board finds that the Veteran's disability picture during this period more closely resembled a 70 percent disability rating and not a 100 percent disability rating. The Veteran did not exhibit such total occupational and social impairment as to have gross impairment of thought processes or communication, he endorsed no persistent delusions or hallucinations, nor grossly inappropriate behavior. The Board does note the one instance of the Veteran reporting hallucinations however this was indicted to be from withdrawal and not due to his acquired psychiatric disorder directly nor was it repeated in any other instance during this period. There was no finding by any mental health provider that he was a persistent danger to himself or others, and he was able to continue activities of daily living such a managing his own hygiene, spending time with his children or renewing his relationship with his son, and addressing issues of his own mental health. The Veteran was also found not to be disoriented, nor have such memory loss as to forget himself nor his family. The Board finds that the Veteran's acquired psychiatric disorder more closely met the 70 percent disability rating and did not rise to a total occupational and social impairment during this time period. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such the Board finds that the Veteran's acquired psychiatric disorder is entitled to a 70 percent disability rating, but no higher, as of February 1, 2019. Entitlement to a TDIU The Veteran does not contend that he is entitled to an evaluation of a TDIU; however, the claim is reasonably raised by the record. See Rice v Shinseki, 11 Vet. App. 447 (2009); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran was already service connected for an acquired psychiatric disorder, and with this opinion, at 70 percent disabling effective May 24, 2011, with intermittent periods of 100 percent disabling. With the Veteran's acquired psychiatric disorder rating of 70 percent, he has met the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). TDIU was previously denied in May 2013, and in March 2018, however, the Board may infer the issue of TDIU when it is reasonably raised by the record. See Rice v Shinseki, 11 Vet. App. 447 (2009); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009). Accordingly, the remaining issue is whether the Veteran's service-connected acquired psychiatric disorder precluded the Veteran from securing and following a substantially gainful occupation. See 38 C.F.R. § 4.16(b). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). VA is to look at the impact that the Veteran's service-connected disabilities have on his ability to engage in the physical and mental acts required by employment. Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). The Board notes that the Veteran's last employment was as a busser in a casino for 6 months in 2017, and before that in 2010 at a bakery, as a gas station manager, and he worked as a janitor. The Veteran has a bachelor's degree in social work and worked as a case manager until approximately 2007. The Veteran has difficulty with social interactions, trusting people, angry outbursts, panic attacks, sleep impairment, and intrusive thoughts. The issues of employment and employability are addressed in the VA examinations of July 2011, August 2012, April 2015, October 2016, November 2017, and June 2020, and throughout the Veteran's medical records, and throughout the submitted statements of the Veteran. The VA examination of August 2012 indicated the Veteran had 1 job in the past year and all had been reported to be lost due to the Veteran's PTSD, that no one would interview him and in the last 6 years he had a total of 4 jobs. The April 2015 VA examination noted that the Veteran's ability to appropriately interact with others was moderately impaired due to irritability and impaired impulse control. The examiner also found the Veteran would have issues with accepting criticism and would have issues with concentration and memory. The Veteran's mental health disability benefits questionnaire of May 2015 indicated that the Veteran could work if his acquired psychiatric disorder was managed better, but he would have difficulty otherwise. The VA examination of October 2016 noted moderate impairment of the Veteran's ability to work, while the November 2017 VA examination indicated the Veteran's symptoms would interfere with his ability to work. There are consistent statements made throughout the Veteran's medical records on his continued inability to secure and maintain employment which were exacerbated by his multiple mental health diagnoses. Additionally, the Board notes the submitted letters from Dr. DM indicating an inability to work from 2012 to 2013. The Veteran makes clear statements that he wants to work and continued to apply for jobs, but never receive an interview or a response. While the Board acknowledges the Veteran's desire to work and his diligent intentions to apply for jobs and seek employment. It is clear from his VA treatment records, VA examinations, and episodes of in-patient treatment that he is unable to sustain and maintain gainful employment when considering his education, legal issues, substance abuse issues, and the effects of acquired psychiatric disorder. Although it is conceivable that there may be some occupations that the Veteran could have performed with accommodations, the totality of the evidence supports a finding that his service-connected acquired psychiatric disorder rendered him unable to obtain and maintain substantially gainful occupation when his educational and work background are taken into consideration as well. The Board finds that the evidence is at least in equipoise as to whether the Veteran's acquired psychiatric disorder rendered him unemployable. The VA examiners did not conclude that the Veteran's acquired psychiatric disorder resulted in total occupational impairment; however, this does not preclude a finding that his acquired psychiatric disorder substantially affects employment. The evidence of record shows that the Veteran's psychiatric symptoms had a significant effect on his ability to work. Given the impairment produced by his acquired psychiatric disorder, it appears that the Veteran would not have been capable of more than marginal employment in any type of work setting. See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 72 (2016). Thus, the Board will resolve reasonable doubt in the Veteran's favor and find that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected acquired psychiatric disorder. 38 U.S.C. § 5107, 38 C.F.R. § 4.16. Therefore, entitlement to a TDIU is warranted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.A. Teich, 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.