Citation Nr: 25008564
Decision Date: 06/30/25	Archive Date: 06/30/25

DOCKET NO. 18-14 103
DATE: June 30, 2025

ORDER

An initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) effective January 19, 2016 to January 1, 2018 is granted.

A total disability rating based on individual unemployability (TDIU) due to PTSD effective January 19, 2016 is granted.

FINDINGS OF FACT

1. From January 19, 2016 to January 1, 2018, the Veteran's PTSD was manifested by symptoms and functional impairment satisfying the criteria for a 70 percent rating, but no higher.

2. From January 1, 2016 to January 1, 2018, the Veteran did not have substantially gainful employment.

3. From January 1, 2016 to January 1, 2018, the rating assigned the Veteran's PTSD has satisfied the percentage requirements for schedular entitlement to TDIU. 

4. From January 1, 2016 to January 1, 2018, the Veteran's PTSD rendered him unable to obtain or maintain substantially gainful employment.

CONCLUSIONS OF LAW

1. From January 19, 2016 to January 1, 2018, the criteria for an initial rating of 70 percent, but no higher, for PTSD have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.130.

2. From January 19, 2016 to January 1, 2018, the criteria for a TDIU due to PTSD have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from October 1969 to October 1973, which included service in the Republic of Vietnam.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

In a June 2019 decision, the Board denied an initial rating higher than 30 percent for the Veteran's PTSD for the period prior to January 1, 2018, and granted an increased rating of 50 percent from January 1, 2018.  

By a July 2020 Order, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand (JMPR) filed by the Veteran and VA's Office of General Counsel, and vacated the Board's June 2019 decision to the extent it denied higher ratings for the Veteran's PTSD, remanding the matter for action consistent with the terms of the joint motion.  The Board then remanded the matter for further development in July 2021.

In a February 2023 decision, the Board again denied an initial rating higher than 30 percent for the Veteran's PTSD prior to January 1, 2018, and granted a 70 percent rating effective January 1, 2018.  It remanded the issues of entitlement to a rating higher than 70 percent from January 1, 2018 and entitlement to TDIU based on PTSD alone. 

By a September 2023 Order, the Court granted a JMPR filed by the Veteran and VA's Office of General Counsel, and vacated the Board's February 2023 decision to the extent it denied a rating higher than 30 percent for the Veteran's PTSD prior to January 1, 2018, to include on the basis of TDIU, remanding the matter for action consistent with the terms of the joint motion.  

A March 2023 rating decision implemented the Board's grant of a 70 percent rating for the Veteran's PTSD effective January 1, 2018, and also granted TDIU on a schedular basis effective January 1, 2018.  In a January 2024 appellate brief, the Veteran, through counsel, withdrew the appeal of the denial of a rating higher than 70 percent for his PTSD from January 1, 2018 forward.  

In a March 2024 decision, the Board again denied an initial rating higher than 30 percent for the Veteran's PTSD prior to January 1, 2018, and denied entitlement to TDIU prior to January 1, 2018.  It also dismissed the issue of entitlement to a rating higher than 70 percent for PTSD since January 1, 2018.  The Veteran appealed that decision to the Court, except the dismissal.  In a February 2025 Order, the Court granted a JMPR and vacated the Board's March 2024 decision to the extent it denied a rating higher than 30 percent for the Veteran's PTSD prior to January 1, 2018 and entitlement to TDIU prior to that date.  It remanded the matters identified in the JMPR for action consistent with the terms of the joint motion.  

In June 2025, the Veteran submitted a private psychiatric evaluation and private vocational assessment, both dated in May 2025.  In June 2025 correspondence ("Appellate Brief"), he waived any right to initial consideration of that evidence by the agency of original jurisdiction (AOJ).  See 38 C.F.R. § 20.1305(c); but see 38 U.S.C. § 7105(e) (providing that, as applicable to appeals in the legacy system, there is an automatic waiver of initial review of evidence submitted by the claimant or the claimant's representative to the AOJ or the Board with, or after submission of, a substantive appeal); Pub. L. No. 112-154, § 501(a) (Aug. 6, 2012); Pub. L. No. 112-154, § 501(a) (Aug. 6, 2012) (providing that the provisions of § 7105(e) are applicable in cases where substantive appeal filed on or after Feb. 2, 2013).

Increased Ratings

VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. Part IV.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10.  The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  

Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, 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.  Otherwise, the lower rating will be assigned.  Id.  All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  If the positive and negative evidence is in approximate balance-which includes but is not limited to equipoise-the claimant receives the benefit of the doubt.  Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021).  If the evidence persuasively favors one side or the other, there is not an approximate balance, and therefore the benefit-of-the-doubt-rule does not apply.  Id. at 781-82.  

Entitlement to a higher initial rating for PTSD prior to January 1, 2018.

For the following reasons, the Board finds that the criteria for an initial rating of 70  percent, but no higher, for the Veteran's PTSD from January 19, 2016 to January 1, 2018 have been met.   In that regard, as this is an initial rating case, the period under review begins January 19, 2016, the effective date of service connection for his PSTD.  See Fenderson, 12 Vet. App. at 126.  Since January 1, 2018, a 70 percent rating has already been assigned his PTSD, and that period is no longer on appeal before the Board, as discussed above.

A. Rating Criteria

The Veteran's service-connected PTSD is rated under Diagnostic Code (DC) 9411, which pertains to PTSD.  38 C.F.R. § 4.130.  Almost all mental health disorders (with exceptions not applicable here) are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment.  Id.  

Under the General Rating Formula, a 10 percent disability rating requires:

Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 

A 30 percent disability 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, or 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 disability 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 work-like setting; inability to establish and maintain effective relationships.)

A 100 percent 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 symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. Id.  Rather, VA must consider all symptoms of a claimant's condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-V).  Id. at 443; see 38 C.F.R. § 4.130. 

If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned.  Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). 

In sum, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms.  Vazquez-Claudio, 713 F.3d at 118. 

A disability evaluation shall be assigned based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  38 C.F.R. § 4.126(a).

While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment.  38 C.F.R. § 4.126(b).

B. Factual Background

 

The VA treatment records show that in November 2015, the Veteran was seen for an initial psychiatric therapy appointment.  He reported depression, anxiety, sleeplessness, nightmares, isolation, and hypervigilance.  He stated that he could not control his PTSD symptoms as he had too much time to think.  During the counseling session, he was open and friendly.  His speech was at a normal rate and flow.  He maintained good eye contact and had no problems expressing himself during the session.  His recent and remote memory was intact.  His thought process was normal.  His judgement was "impulsive" and his insight poor regarding his mental health treatment and symptomatology.  He appeared to be in a depressed mood.  His affect was congruent.  His sociability was withdrawn.  He denied suicidal or homicidal ideations.  He was advised to continue pharmacological and individual therapy treatment to reduce symptomatology.  

In December 2015, the Veteran was seen for follow-up therapy.  He reported depression, sleeplessness, and nightmares.  His depression had increased over the holidays, but he reported that he had a good Thanksgiving.  His children had come over to the house.  

Later in December 2015, the Veteran was seen for psychiatric medication management.  He reported insomnia, nightmares, and worsening depression over the holidays and during the colder weather.  He noted that he had retired two years earlier.  He had outside hobbies, which made winter "so much harder."  He felt he had "too much time to think" since his retirement.  He had decreased energy.  On observation, he was casually dressed with good grooming and hygiene.  His mood was slightly anxious with congruent affect.  He denied suicidal ideation.  His speech was clear, concise, and goal-directed.  His judgment and insight were good.  His memory appeared intact.  He was prescribed mirtazapine for "sleep/mood."

On that same day the Veteran was also seen for follow-up therapy.  He reported that he had been prescribed medication to help with his depression and sleep issues.  He stated that he had increased social isolation since the last session.  He stated he "always gets down" at that time of year when he could not be active.  He related that he and his wife were going to celebrate Christmas at his house, and that his daughters would be coming over.  He had two more presents to buy and then would be done with buying Christmas gifts.  He and his wife planned to go shopping after that day's therapy appointment.  The therapist described observations of the Veteran identical to those in the initial November 2015 visit, including "impulsive" judgment and a depressed mood with congruent affect.  He denied suicidal ideation.  

The Veteran was seen again toward the end of December 2015 for therapy.  He reported having a good Christmas and that his daughters had come over.  He had increased stress due to an issue that one of his daughters was facing.  He experienced a small decrease in the frequency of his nightmares, which he attributed to medication.  He and his wife were planning to go on a short vacation the following month.  He denied suicidal ideation.  The therapist repeated the same observations of the Veteran on mental status examination as in prior records.  

The Veteran was next seen in late January 2016 for therapy.  He reported that he continued to have nightmares even when taking medication for sleep.  He and his wife planned on going on a week's long vacation the following month, and stated that he was very much looking forward to having a break.  He did not like being cooped up in the house during the snow storm.  He had several projects that kept him busy until spring.  He added that his wife "finds ... a lot of things [for him] to do around the house."   The therapist repeated the same observations of the Veteran on mental status examination as in prior records.  

In February 2016, the Veteran was seen as a walk-in for medication management.  He reported that he had been pleased with the first week since starting a new medication (Trazodone) in terms of improvement in his sleep, though he noted no improvement in depressive symptoms.  However, after that first week, his sleep duration decreased to three hours per night, and he had nightmares two to three times per week.  On mental status examination, he was casually dressed with good grooming and hygiene.  His mood was slightly anxious with congruent affect. He denied suicidal ideation.  His speech was clear, concise, and goal-directed.  His judgment and insight were good.  His memory appeared intact.  The plan was to increase the dosage of his sleep medication and discuss starting an SSRI (selective serotonin reuptake inhibitor) at the next appointment if needed.

The Veteran was seen in late February 2016 for therapy.  He reported that his symptoms of depression and agitation had "escalated" over the past few weeks but he could not identify a cause for the increased symptoms.  He denied suicidal ideation.  The therapist repeated the same observations of the Veteran on mental status examination as in prior records.  The only difference was that the therapist noted him to appear to be in an anxious mood and that his affect was congruent.  

The Veteran was next seen in late March 2016 for therapy.  He reported that his symptoms of depression had remained unchanged since the last session.  The medication had improved his sleep but he still had nightmares.  He was doing jobs inside the house to keep himself busy and his mind occupied.  He was glad the weather was warming up so that he could get outside and do things.  He and his wife planned to take a trip the following month for about a week.  The therapist repeated the same observations of the Veteran on mental status examination as in prior records.

In April 2016, the Veteran was seen by the physician assistant for medication management.  He reported that the medication had improved his mood "a little maybe."  He also had improved sleep with a decrease in the frequency of nightmares.  He complained of intrusive thoughts of time spent in the military.  They often occurred when he was waking in the early morning.  His energy and motivation were fair.  On mental status examination, he was casually dressed with good grooming and hygiene.  His mood was slightly anxious with congruent affect. He denied suicidal ideation, homicidal ideation, and auditory verbal hallucinations ("AVH").   His speech was clear, concise, and goal-directed.  His judgment and insight were good.  His memory appeared intact.  He was prescribed Bupropion for mood and PTSD. 

On that same day, the Veteran was also seen by a nurse.  The nurse's notes state "Yes" next to visual hallucinations and auditory hallucinations.  There is no further discussion.

An April 2016 therapy record reflects that the Veteran reported noticing that he slept a little longer than usual, which he attributed to a change in his medications.  He related that he and his wife took a week-long trip and had a very good time.  He stated it was good to take a break and get away.  He had completed all of the inside jobs that needed to be done over the winter and was glad to get outside and complete other tasks.  The therapist repeated most of the same observations of the Veteran on mental status examination as in prior records.  However, whereas before the therapist found that the Veteran had no difficulty expressing himself, the therapist stated that he had difficulty expressing himself during the session.  The therapist also stated, unlike in prior records, that the Veteran's recent memory was impaired, with no further discussion or explanation.  The therapist continued to state that the Veteran's judgment was "impulsive" and his insight limited.  The Veteran denied suicidal ideation, homicidal ideations, and psychosis. 

In May 2016, the Veteran was seen for medication management.  He reported that he felt the Bupropion had not elevated his mood.  He complained of intrusive thoughts of his time in the military, which often occurred when waking early in the morning.  His sleep had improved with medication.  His energy and motivation were fair.  On mental status examination, he was casually dressed, with good grooming and hygiene.  His mood was slightly depressed with congruent affect.  He denied suicidal ideation.  His speech was clear, concise, and goal-directed.  His judgment and insight were good.  His memory appeared intact.   

The Veteran was also seen in May 2016 for therapy.  He had symptoms of depression and anxiety.  He reported that Mother's Day have been rough because he was thinking of his deceased first wife all that day.  He stated in that regard that his daughters had been at his house and he saw her in them.  He was frustrated with the rain because he could not get outside and do things.  He and his wife planned on going to the beach the following month with one of their daughters.  On mental status examination the Veteran was open and friendly.  His speech was at a normal rate and flow.  He maintained good eye contact but had difficulty expressing himself during the session.  His recent memory was impaired and remote memory was intact.  His thought process was normal.  His judgement was "impulsive" and his insight limited regarding his mental health treatment and symptomatology.  He appeared to be in a depressed mood and his affect was congruent.  His sociability was withdrawn.  He denied any suicidal ideation. 

In late June 2016, the Veteran was seen for follow-up therapy.  He reported that his depression had increased over the past two weeks, and noted that the following day was his deceased son's birthday and that he had thought about him a lot on Father's Day.  He stated that he and his wife planned to eat at a restaurant after that day's appointments.  The therapist reiterated the mental status examination findings set forth in the May 2016 record and earlier records. 

In late June 2016 the Veteran was seen for medication management.  He reported that he could not tell if the medication was helping.  He stated that he was "on edge" a lot, and that "things that shouldn't bother [him] do," adding that he had "bouts of anger over things [that were] not important."  His chief complaint was that he felt depressed.  He felt tired in the afternoon but avoided naps.  He enjoyed home projects.  His mood was best when busy working.  He enjoyed his thirteen grandchildren.  He denied current thoughts of self-harm or suicide.  The pharmacy specialist found that the Veteran's symptoms of depression and PTSD remained uncontrolled, referring to his report that he had not benefited from Bupropion since starting that medication.  The plan was to switch the Veteran to a different SSRI, sertraline, and gradually take him off the Bupropion.

In July 2016 the Veteran underwent an initial VA PTSD examination by a psychologist as part of the development of this claim.  Regarding his personal history, the Veteran reported that he married his second wife in 1995.  He described the marriage as stable, though they had more arguments that he had with his first wife.  He had good relations with his two stepchildren.  He maintained contact and good relations with his siblings.  He had resumed relationships with previous classmates since moving back to his home state and they had recently celebrated their 50-year high school reunion.  He stated he will see his friends out at the stores or sometimes they will stop by and they will chat.  He was actively involved in his church.  He was also active with yardwork and home repairs.  He did not go out to restaurants very often as he did not like the crowds or noise.  He avoided fireworks and a lot of public gatherings.  Regarding his work history, he reported working as a manager for a department store for about four years.  He then moved to a different state and worked as the owner of a gas station for thirty-six years before retiring in 2013.  He denied any significant job-related problems other than the "normal" customer and employee problems.  

On mental status examination, the Veteran was alert and oriented in all spheres.  There was nothing remarkable noted about his appearance.  His thought processes were logical and coherent.  His speech was fluent and the rate and volume were within normal limits.  He did not endorse or evidence any psychotic processes.  He was cooperative and goal directed.  His affect was appropriate to content.  His judgment and insight appeared grossly intact.  He denied violent ideation, thoughts, intent, and plan towards himself and others. 

The July 2016 VA examiner found that, for rating purposes, the Veteran's symptoms consisted of depressed mood, anxiety, suspiciousness, and chronic sleep impairment.  The examiner found that the Veteran's symptoms caused occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although he was generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.  

In August 2016 the Veteran was seen for medication management.  He reported improvement in his symptoms since starting sertraline.  His energy and motivation had decreased.  He disliked crowds and avoided social situations when possible.  He was hypervigilant to his surroundings.  He was often on edge and startled easily.  On mental status examination, his mood was euthymic with congruent affect.  He denied suicidal ideation.  His speech was clear, concise, and goal-directed.  His judgment and insight were good.  His memory appeared intact. 

In late August 2016 the Veteran was seen for therapy.  He reported having to be more active with providing transportation to and from school for his grandchildren.  He and his wife were planning on going on a trip in the near future.  She had been keeping him busy around the house with things that needed to be fixed.  The therapist reiterated the mental status examination findings described in the May 2016 record.  The Veteran denied any suicidal ideations.  

In an August 2016 statement submitted in support of his Notice of Disagreement (NOD), the Veteran wrote that he felt better being by himself as he did not have to "deal with problems or anyone."  He found conversation with people very difficult. He did not talk much to his wife anymore, which had strained their marriage.  He had "muted" his emotions.  He did not "seem to care about much anymore."  For example, sports were "very much a part of [his] life, but now he did not care "one way or another."  He had a lot of trouble with his memory.  He could not remember important dates such as his anniversary, who attended the wedding, or the wedding pastor's name.  He could not remember the birthdays of his wife or children.  He had trouble remembering "things that happened 5 or 10 minutes ago or yesterday," which affected his "ability to function as a normal person."  He had problems with oral and written instructions.  He stated that he thinks he knows them but "can never quite get the job completed."  He could not seem to get motivated to do items around the house, and seldom completed them totally.  He stated that his car was always a priority, but now if he cleaned it he only got the inside or outside done, never both.  He "just [could not] seem to complete any task given."  He stated that that was one reason he "quit working," adding that he was having too much trouble doing his job as it should have been done.  He further wrote that he had experienced panic attacks for many years, and that they occurred at least twice per week.  The attacks were characterized by being really dizzy, his heart feeling like it was going to burst out of his chest, and being unable to catch his breath.  When he first experienced a panic attack he thought it was a heart attack.  He stated that when he was in a crowd it usually upset him  and he feared having another panic attack.  He stated that his thinking and logic were "nothing like [they were] at one time."  In that regard, he was once very good at prioritizing work and figuring out the best and fastest way to complete the job.  Now he could not seem to "get [his] thinking together."  What was once a simple task now seemed like a mountain to climb.  He concluded by stating that he had a lot of problems relating these issues to anyone.  He felt "ashamed and out of control." 

In October 2016 the Veteran was seen for medication management.  He reported marginal improvement in his PTSD symptoms and mood since increasing sertraline at the previous visit.  His energy and motivation were decreased.  He disliked crowds and avoided social situations when possible.  He reported hypervigilance to his surroundings.  He was often on edge and startled easily.  The plan was to increase the dosage of sertraline and Trazodone.

The Veteran was also seen in October 2016 for therapy.  He reported having numerous house projects to do but did not have the motivation to get them done.  He was looking forward to the holidays when all his family would get together.  On mental status examination he was open and friendly.  His speech was at a normal rate and flow.  He maintained good eye contact and did not have difficulty expressing himself during the session.  His recent and remote memory were intact.  His thought process was normal.  His judgement was "impulsive" and his insight limited regarding his mental health treatment and symptomatology.  He appeared to be in a depressed mood with a flat affect.  His sociability was withdrawn.  He denied any suicidal ideation.  

In November 2016 the Veteran was seen in by the therapist for therapy.  He reported feeling down more than usual.  He stated that their children would be coming over for Thanksgiving.  On mental status examination he was open and friendly.  His speech was at a normal rate and flow.  He maintained good eye contact and did not have difficulty expressing himself during the session.  His recent and remote memory were intact.  His thought process was normal.  His judgement was "impulsive" and his insight limited regarding his mental health treatment and symptomatology.  He appeared to be in a depressed mood with a flat affect.  His sociability was withdrawn.  He denied any suicidal ideation.  

In December 2016 the Veteran was seen by the therapist for therapy.  He reported that he had a good Thanksgiving.  His daughters and grandchildren came over.  His daughters would also be coming over for Christmas.  He and his wife had been babysitting their grandson every day while his daughter worked.  He continued to have nightmares and intrusive thoughts of his military traumas.  Winter was harder for him as he could not get out as much to walk and do outdoor activities.  The therapist reiterated the mental status examination findings from the November 2016 record.

In January 2017 the Veteran was seen for therapy.  He reported that he and his family had a good Christmas.  He stated he was more socially isolated due to the weather.  The therapist repeated the mental status examination findings from the November 2016 and December 2016 records. 

In March 2017 the Veteran was seen for therapy.  He reported that he had finished all of the items his wife wanted him to fix inside the house.  He and his wife were planning on taking a trip to the beach soon.  On observation, he was appropriately dressed and groomed.  He was cooperative and pleasant.  His mood and affect were constricted.  His speech was coherent and normal in rate and volume.  His attention span and concentration were appropriate.  His thoughts were logical, linear, and without circumstantiality or loose associations.  His remote and recent memory appeared intact.  His insight appeared partial and judgment fair.  He denied any suicidal ideation.  He was depressed because his activities were limited due to inclement weather, but he had strong protective factors, including future plans, meaningful recreational activities and creative outlets, spiritual beliefs, and a supportive significant other. 

In April 2017, the Veteran was seen for medication management.  He reported looking forward to springtime weather.  His sleep had improved.  His energy and motivation were decreased.  He disliked crowds and avoided social situations when possible.  He reported hypervigilance to his surroundings.  He was often on edge and startled easily.  

In June 2017 the Veteran was seen for therapy.  He reported that he had just been sitting on the porch watching it rain.  He and his wife planned on taking a trip to the beach at the end of the month.  The therapist made the same mental status observation findings described in the March 2017 record, adding that the Veteran was depressed because of limited activities due to social isolation but had strong protective factors, including future plans, meaningful recreational activities and creative outlets, spiritual beliefs, and a supportive significant other.

In a September 2017 therapy record, the Veteran reported that he dreads fall and winter as that time of the year was hard on him because he was not able to get out of the house as much and it was "so dreary."  He related that he and his family had a good Labor Day weekend; the kids came over and they had a cookout.  The therapist repeated the same mental status findings set forth in the March 2017 record.

A September 2017 depression screening on the same date as the above therapy record reflects that in response to the question whether the Veteran had little interest or pleasure in doing things, he responded, "more than half the days."  In response to whether he felt down, depressed, or hopeless, he stated, "Several days."  In response to the question whether he had thoughts that he would be better off dead or of hurting himself in some way, he responded, "Several days." 

An October 2017 therapy record reflects that the Veteran reported that his children and grandchildren were coming over for Thanksgiving that year.  He related that he had recently watched a documentary about the Vietnam War which "bothered [him] after watching it."  The therapist repeated the same mental status findings set forth in the September 2017 record and earlier records.

A December 2017 therapy record reflects that the Veteran reported that his family getting together for Thanksgiving was good.  However, after a while of the grandchildren "screaming" he "had to get out of there."  He stated that he and his wife wanted to take a trip to the beach for a few days but also needed to ensure they were available to help their daughter if one of her children got sick.  He continued to have sleeplessness, nightmares, and intrusive thoughts of Vietnam.  He tried to keep busy during the day so that he would not think about those experiences; however, that was hard to do at times.  He added that he usually went out to the garage to "piddle with things," but the cold weather was preventing him from doing that.  The therapist repeated the same mental status findings set forth in the October 2017 record and earlier records. 

In an April 2019 informal hearing presentation (IHP), the Veteran, through his representative, wrote that he was unable to maintain effective relationships because he had difficulty conversing with others, and suffered from impaired impulse control, panic attacks occurring at least once or twice per week, and an impairment of short- and long-term memory affecting his ability to understand complex commands.  The April 2019 IHP also argues that the July 2016 VA examination report was inadequate because it failed to address the Veteran's lay testimony. 

In a February 2021 statement, the Veteran wrote that before the discontinued working he knew he had "dangerous problems."  He slept about three to four hours per night with nightmares three to four times per week.  He woke up soaking in sweater.  He then could not rest anymore.  He got up to check the house, the windows and doors.  He stated that he thought an alarm system would help him but it did not.  He stated that he still had to check and recheck the house.  He further wrote that often he hears someone talking outside during the night.  He had all the trees removed from his property and flood light installed to be able to see better.  At times he saw enemy soldiers coming toward him and yelling.  By the time he got his weapon they were gone.  It took him hours to recover.  He stated that these episodes had worsened since he retired.  

The Veteran further wrote that his PTSD is like an eight-headed snake; he never knew what he would face each day.  When he worked he had an "awful time keeping on good terms with other workers."  He had trouble concentrating on tasks.  This caused conflicts with other workers and he would get very angry and lash out.  He stated that his ability to concentrate on work was a constant problem.  He often got distracted and forgot what he was doing.  The lack of production was always a sore spot with co-workers and caused a lot of trouble.  He felt isolated in the workplace because of this.  He would forget simple tasks he had done for years.  He stated that these issues continued to worsen every day.  He stated that problems at work got so bad that he could not do it anymore, and so he retired.

The Veteran also wrote that because of his "short fuse" and feelings of hopelessness he did not have any friends he could go to.  His past and present actions "made [him] all alone."  He stated his counselors "understand some" but could only help so much.  He noted that they always ask him about any intentions to hurt himself or anyone else, and that he tries to tell them that he has thoughts about suicide quite often.  When he argued with others he had thoughts about harming them.  He stated that counselors asked if he had thoughts about following through, and that he felt that if he confirmed that he did have such thoughts he would be "locked up."  

The Veteran further stated that since retiring he had trouble remembering names of family members, such as the names of his uncles and aunts, and even his grandchildren at times.  He stated that the most alarming problem with his memory was that he got out of his car and forgot to turn the ignition off.  He had also put a pan of food on the stove and walked away.    

The Veteran submitted a November 2022 report by a private psychiatrist assessing the severity of the Veteran's PTSD and its impact on his occupational functioning since 2013.  In addition to a review of the treatment records and VA examination reports, the psychiatrist conducted an interview with the Veteran.  The psychiatrist noted that throughout the interview, the Veteran was cooperative and engaged with organized speech and thoughts.  He stated that he felt hopeless in relating to others, particularly VA personnel and former employees.  He could not name any activities he enjoyed as his days were mainly spent going to medical appointments.  He stated that his symptoms had worsened since 2013, which is when he stopped working.  He reported earning his degree in advertising prior to entering active service, but could only work in retail due to his "social issues."  After a few years, he had the opportunity to own and operate a family business, namely a gas and service station.  He was responsible for all aspects of the store's management, including overseeing and scheduling employees, coordinating purchasing from vendors, and customer service.  He stated that he had to "micromanage" his employees and would get "too angry" when they "wouldn't work like they were supposed to."  He also noted that customers were often demanding and wanted "special treatment."  This would escalate quickly into verbal altercations, and he would "walk off."  He admitted that if he were not the boss this behavior would have been deemed "unacceptable" and he would have been fired.  He also struggled to "get to customers fast enough."  Moreover, he would take more breaks than anyone else and avoided longer shifts, even starting one to two hours later in the last years of work.  He was often preoccupied with his thoughts and admitted that he made more errors in the budget due to poor concentration. 

The psychiatrist found that the Veteran's PTSD resulted in chronic irritability, decreased motivation and energy, suicidal ideation, and social isolation, which had prevented him from maintaining gainful employment and healthy interpersonal relationships since at least 2013.  In that regard, the psychiatrist noted that veterans "often present with little formal mental health history, despite the severity of their PTSD" due to the "stigma and barriers to treatment."  The psychiatrist stated that the Veteran admitted this fear in a February 2021 statement, noting that he was afraid of disclosing his thoughts about harming others and active suicidal thoughts for fear that he will be "locked up."  The psychiatrist further stated that the Veteran's "reticence to disclose his symptoms" was noted on examination in the April 2016 VA treatment record, in which the therapist stated that the Veteran had "difficulty expressing self during session."  The psychiatrist additionally noted that the Veteran was found to have poor insight into his mental health in the November 2016 and April 2016 VA treatment records.  The psychiatrist found that all of these factors indicated a tendency for the Veteran to underreport and underestimate the severity of his symptoms to his treating providers.  The psychiatrist stated that despite the Veteran's difficulty expressing himself in a clinical setting, the symptoms he described in written statements over the years, in his interview with the psychiatrist, and at the VA examinations were severe and would prevent him from working in any setting. 

The psychiatrist noted that the Veteran's depressive symptoms in association with PTSD indicated that he was in a high-risk group for poor mental health, explaining that veterans with PTSD and depression have poorer occupational and social functioning and a significantly elevated risk for persistent PTSD symptoms and suicide.  The psychiatrist found that previous VA examinations that determined that the Veteran's PSTD only caused an occasional decrease in work efficiency and reduced reliability or productivity underestimated his impairment. 

The psychiatrist stated that the July 2016 VA examination report shows that the Veteran had a depressed mood, anxiety, suspiciousness, avoidance behaviors, and chronic sleep impairment.  The psychiatrist further stated that the November 2021 VA examination report showed that the Veteran had "passive thoughts of death" and that his anger issues led him to isolate himself most days of the week.  The psychiatrist stated that these symptoms occurred daily and interfered with the Veteran's social and occupational functioning since at least 2013.  

The psychiatrist also found that the Veteran's history of altercations in the workplace and ongoing outbursts of irritability were strong evidence that he was not able to manage the appropriate and effective communication required for employment.  The psychiatrist noted that as the operator of his own business, the Veteran received special accommodations that would not usually be found in the general labor market.  In that regard, he made his own hours, working an abbreviated schedule, and adjusted his job duties.  Such work through a family-owned business would best be characterized as a protected work environment and did not translate to the ability to perform work in non-protected settings, according to the psychiatrist.  The psychiatrist added that in the years leading up to the Veteran's retirement, he could no longer smooth over his conflicts with employees and customers.  It got to the point that he argued with everyone so much that he could no longer keep his business staffed and profitable. 

The psychiatrist stated that the Veteran's symptoms only intensified since retirement, noting that the Veteran had become increasingly socially isolated and prone to angry outbursts, and that he engaged in few social interactions outside his immediate family.  The psychiatrist opined that the Veteran's PTSD symptoms would have prevented him from working since 2013; any attempts to return to even part-time employment would result in a significant exacerbation of his condition as he did not have the adaptability to deal with the stress inherent in any occupational environment.  The Veteran's impaired memory and concentration would make completing any occupational tasks to the standard of the employer extremely difficult. 

The psychiatrist summarized that the Veteran's PTSD had resulted in chronic irritability, decreased motivation and energy, suicidal ideation, and social isolation, which prevented him from maintaining gainful employment and healthy interpersonal relationships since at least 2013. 

The Veteran has also submitted a May 2025 report by the same psychiatrist who authored the November 2022 report, which the psychiatrist characterized as an "addendum" to the November 2022 report.  The psychiatrist stated that another interview had been conducted with the Veteran in March 2025.  In that interview, he reported longstanding sleep difficulties, flashbacks, irritability, and cognitive difficulties.  He had a more challenging time compensating for these symptoms in the last three to five years he owned a gas station despite attempts to alter his work hours and limit interpersonal interactions.  

Regarding the Veteran's irritability, he lacked patience with employees and had difficulty maintaining enough staff to work with him to keep the store open.  He argued with customers more frequently, and recalled an incident in which he was changing a tire while "mouthing off" with a customer and impulsively picked up the tire iron to fight.  The same irritability created issues at stores and restaurants as he would "comment negatively to other patrons," which "could get [him] into trouble," meaning it would escalate situations.  

Regarding the Veteran's memory loss, he at first noticed being unable to recall names and dates.  He soon had a harder time attending to the pace of running the store, and was less organized with respect to the administrative aspects such as paying bills on time.  His wife "took over the books," for at least the last year he owned the business.  He stated that he feels fatigued and has a low mood, which contributes to his difficulty paying attention.  He wakes up with "flashbacks" (quotes in original) and will lie awake for hours to avoid disturbing his wife.  He has difficulty staying alert while driving and has driven through red lights.  He lacks routine as "every day feels like Saturday, and [he does not] feel like doing routine things" like getting up or dressed. 

The psychiatrist stated that she again reviewed the Veteran's service records, medical records, and lay statements, and personally interviewed him.  Her opinion regarding his diagnosis and the severity of his psychiatric condition remained unchanged.  She found him to be "totally disabled due to his PTSD" since 2013.  

In that regard, the psychiatrist stated that the Veteran suffered from severe PTSD symptoms, including chronic irritability with social isolation, depression with decreased motivation and energy, sleep disturbance, and suicidal thoughts.  She stated that her November 2022 opinion detailed his reticence to seek treatment, and provided references explaining that it is common for veterans to delay mental health treatment due to stigma and avoidance, and how depressive symptoms associated with PTSD contribute to occupational impairment.  

The psychiatrist opined that the Veteran was only able to work as long as he did because he ran his own business.  He could set his hours and adjust his job duties.  His demeanor with employees and customers was only tolerated as he was the boss.  The psychiatrist mentioned in that regard the reported incident of the Veteran threatening a customer with a tire iron, which would have resulted in immediate dismissal in any competitive work environment.  She stated that his inability to attend to customers and retain employees ultimately limited his business's profitability.  He did not report these issues at his initial VA examination as he lacked the insight into his condition and did not understand the relationship between PTSD and his reactivity. 

The psychiatrist noted that the Veteran was seen once in 2013 and 2014 but remained in denial regarding his diagnosis and declined ongoing treatment.  His insight remained poor, but he presented more regularly for appointments as his symptoms continued to worsen, especially his sleep.  The psychiatrist stated that insomnia plays a role in the progression of depressive symptoms in veterans, and those with insomnia are three times as likely to report suicidal ideation.  This was consistent with the progression of the Veteran's symptoms as he failed to respond to sleeping medications and endorsed more depression, agitation without trigger, and remained socially withdrawn.  He "eventually admitted to wishing he was dead." 

The psychiatrist stated that the Veteran had difficulties fully communicating his level of impairment at his initial July 2016 VA examination for PTSD.  His insight into his illness was poor in the early stages of treatment, as indicated in the treatment records around that time.  The 2016 examination did not include any structured screenings for PTSD that may have helped the Veteran to identify his symptoms better.  The psychiatrist noted that the value of structured questions is evident, as the Veteran scored 62 (severe) when the PTSD Checklist-Civilian (PCL-C) was administered only three weeks later at a mental health follow-up.  The PCL-C measures symptoms over the past month, a timeframe that overlaps with the 2016 examination, with scores of 50-86 indicating severe symptoms.  The July 2016 examiner seemingly relied heavily on the Veteran's ability to carry on conversations, involvement in a service club, and his ability to attend church as evidence of social functioning.  However, the psychiatric observed that the Veteran's participation in that club ended in 1996, and that a brief conversation with someone he knew in high school or at a church service does not translate to an ability to communicate in the workplace.

The psychiatrist stated that over the course of care the Veteran has been more able to discuss his entire constellation of symptoms, including memory difficulties, thoughts about suicide, work-related problems, and marital conflicts.  His more recent statements provide a more realistic account of his functioning based on insights gained through treatment.  He admits to "exploding" in anger with his wife, failing to interact with family during a vacation, and having difficulty tolerating the noise of his grandchildren.  The psychiatrist stated, "This level of inability to tolerate interaction with even his closest family constitutes total social impairment." 

The psychiatrist further wrote that the Veteran has consistently reported difficulties with concentration and recall related to his PTSD and associated depressive symptoms.  As he has not been diagnosed with dementia or another degenerative neurologic condition, his cognitive difficulties must be attributable to his psychiatric symptoms, the psychiatrist stated.  The psychiatric noted that although the Veteran first noticed difficulty remembering names and dates, his treatment notes reflect issues across several cognitive domains: complex attention; executive functioning; learning and memory; and social cognition.  In that regard, the psychiatrist stated that everyday tasks need to be simplified or prompted as the Veteran cannot focus on more than one thing and has difficulty holding information in his mind.  Further, he had difficulty with following directions and multi-stage tasks, such as household chores and shopping.  He had difficulty recalling names and dates, increasingly relying on written notes and reminders for hygiene and medications.  And he had disinhibition or apathy, such as angry outbursts, disengagement, and disturbances of motivation. 

The psychiatrist stated that the Veteran's memory issues beginning in at least 2013, including his inability to recall names and dates in the years following his retirement, are indicative of clinically significant memory loss.  Further, his cognitive changes are clearly due to his PTSD and have been more pervasive than straight memory loss, as they interfered with the running of his business and daily routines, and constitute clinically significant cognitive decline.  The psychiatrist noted in that regard that the Veteran's wife took over the accounting and recordkeeping for his business well before he closed the gas station.  She also provided a corroborating statement outlining her oversight of their finances, household chores, and his medications over the past 10 years. 

The psychiatrist summarized that the Veteran has consistently been plagued by chronic irritability, decreased motivation and energy, suicidal ideation, and social isolation, which have barred him from maintaining gainful employment and healthy interpersonal relationships since at least 2013.

C. Analysis

The Board finds that the Veteran's PTSD more nearly approximated the criteria for an initial rating of 70 percent, but no higher, from January 19, 2016 to January 1, 2018, resolving reasonable doubt in favor of the Veteran.  

Specifically, in the November 2022 and March 2025 reports, the private psychiatrist explained that although the VA treatment records and July 2016 VA examination show less severe symptoms prior to January 1, 2018, the Veteran had difficulties fully communicating his level of impairment during this period.  The psychiatrist found that the Veteran's insight into his illness was poor in the early stages of treatment, as indicated in the treatment records around that time.  The psychiatrist also noted that the July 2016 VA examination did not include any structured screenings for PTSD that may have helped the Veteran to identify his symptoms better.  In that regard, the psychiatrist noted that the results of structured testing performed a few weeks later showed severe PTSD symptoms.  The private psychiatrist further explained that over the course of his care the Veteran has been more able to discuss his entire constellation of symptoms, including memory difficulties, thoughts about suicide, work-related problems, and marital conflicts.  His more recent statements provide a more realistic account of his functioning based on insights gained through treatment, according to the psychiatrist.  

The psychiatrist summarized that the Veteran has consistently been plagued by chronic irritability, decreased motivation and energy, suicidal ideation, and social isolation, which have barred him from maintaining gainful employment and healthy interpersonal relationships since at least 2013, and that his PTSD has been "totally disabling."

The psychiatrist's findings are probative, as they represent the conclusion of a medical professional with relevant expertise, and are based on interviews with the Veteran and a thorough review of the claims file, including prior examinations.  The fact that the evidence shows more severe symptoms less than two years after the period under review, a relatively short time frame, and for which a 70 percent rating has been assigned since January 1, 2018, is in keeping with the psychiatrist's findings. 

The Board notes that in the most recent JMPR, the parties agrees that the Board's March 2024 decision erred by stating that the Veteran's assertions regarding his memory issues did not necessarily show memory impairment in a "clinical sense," and that the types of memory issues he described "may be within the normal range of an average person's memory."  The JMPR found that because the Board had not cited independent medical evidence in support of that finding, it had impermissibly substituted its own medical judgment for that of a medical professional.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).

On further review, the Board finds that the Veteran's PTSD has been manifested by impairment of short- and long-term memory.  In that regard, although he was generally not assessed with memory impairment prior to January 2018, neither the treatment records nor the July 2016 VA examination show that any formal assessment of his memory, such as cognitive testing, was performed.  Thus, it is unclear how the therapist or VA examiner could determine whether the Veteran's memory was within normal range or not.  As noted, the November 2022 and May 2025 reports by the private psychiatrist found that he underreported his symptoms when he initially sought treatment for PTSD.  The Board also finds that his statements provide competent and credible evidence of significant memory issues, such as forgetting to turn off the ignition in his car and having trouble with oral and written instructions.  

The Veteran's memory impairment due to PTSD satisfies the criteria for a 50 percent rating.  However, the Board finds that a 70 percent rating is warranted based on the evidence of suicidal ideation, difficulty in adapting to stressful circumstances, and deficiencies in most areas.  As discussed, while he did not report suicidal ideation prior to January 1, 2018, he underreported his symptoms, lacked insight into them, and has explained why he felt uncomfortable reporting that particular symptom.  The private psychiatrist found that the Veteran's PTSD has been manifested by suicidal ideation throughout the period under review.  Suicidal ideation, no matter how fleeting or passive, is a symptom listed in the criteria for a 70 percent rating.  See Bankhead v. Shulkin, 29 Vet. App. 10, 21-22 (2017).

The Board also finds that the Veteran's reports of difficulties interacting with customers and other challenges at work more nearly approximate difficulty in adapting to stressful circumstances, including work or a work-like setting, which is another symptom listed in the criteria for a 70 percent rating.  See 38 C.F.R. § 4.130.

Finally, as the evidence shows deficiencies in work, family relations, judgment, and mood, the Veteran's symptoms have caused the level of social and occupational impairment corresponding to a 70 percent rating.  See id.  Indeed, the private psychiatrist found the Veteran's PTSD to be "totally disabling" since 2013.

Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that his PTSD has met or more nearly approximated the criteria for a 70 percent rating from January 19, 2016 to January 1, 2018.  See 38 C.F.R. §§ 3.102, 4.3, 4.130; see also 38 U.S.C. § 5107.

Because the evidence does not show total social impairment or any symptoms equivalent in severity, frequency, and duration to the symptoms listed in the criteria for a 100 percent rating under the General Rating Formula, the Board finds that the Veteran's PTSD has not more nearly approximated the criteria for a 100 percent rating from January 19, 2016 to January 1, 2018.  As the persuasive evidence is against a rating higher than 70 percent for the Veteran's PTSD prior to January 2018, the evidence is not in approximate balance or nearly equal on that issue; therefore, the benefit-of-the-doubt rule does not apply.  See Lynch, 21 F.4th at 781-82; 38 U.S.C. § 5107(b).

In sum, an initial rating of 70 percent, but no higher, for the Veteran's PTSD effective from January 19, 2016 to January 19, 2018 is granted.

TDIU

For the following reasons, the Board finds that the criteria for TDIU due to the Veteran's PTSD from January 19, 2016 to January 1, 2018 have been met.

A. Law

Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability.  38 C.F.R. §§ 4.16(a), 4.19; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability).  The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered.  38 C.F.R. § 4.16(b). 

Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991).  Marginal employment shall generally be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a).  Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop.  Id. Consideration must be given in all claims to the nature of the employment and the reason for termination.  Id. 

Although the Board must fully consider "the effect of combinations of disability" in its determination, "neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert."  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).  Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner.  Id. (citing 38 C.F.R. § 4.1 (a)).  Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. 

Certain percentage requirements must be satisfied to qualify for schedular consideration of entitlement to TDIU.  Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more.  38 C.F.R. § 4.16(a).  If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more.  Id.  Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes.  Id. 

If the schedular requirements for TDIU are not satisfied, but the veteran is still found to be unable to work due to service-connected disabilities, the case will be submitted to the Director of the Compensation Service (Director) for extra-schedular consideration.  38 C.F.R. § 4.16(b).

In Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) held that the phrase "unable to secure and follow a substantially gainful occupation" in section 4.16(b) has two components: one economic and one noneconomic.  Id. at 73.  The economic component "simply means 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."  31 Vet. App. 58, 72-73 (2019).  

As for the "noneconomic component," the Court held that this refers to the individual claimant's "ability to secure or follow" an occupation earning more than marginal income.  Id. (emphasis in original).  In determining whether a veteran can secure and follow a substantially gainful occupation, the Court stated that attention must be given to several relevant factors: (1) the veteran's occupational history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g. sedentary, light, medium, heavy, or very heavy) required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue.  Id.  The Court noted that these potentially relevant factors were not a "checklist that must be completely run through in every case," and that any factor need only be discussed if the evidence raises it as an issue.  Id. 

Regarding the mental ability factor, the Court stated that relevant considerations include, but are not limited to, the veteran's limitations with respect to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.  Id.

B. Analysis

The Veteran claims TDIU based on his PTSD alone for the period prior to January 2018.  See December 2022 VA Form 21-8940; January 2024 Appellate Brief.  For the following reasons, the Board finds that a TDIU based on PTSD alone is warranted from January 19, 2016, the effective date of service connection for PTSD, to January 1, 2018, the current effective date for the award of TDIU.  

The Veteran's PTSD has been assigned a 70 percent rating since January 19, 2016 by this decision.  Thus, the percentage requirements for schedular entitlement to TDIU are satisfied.  See 38 C.F.R. § 4.16. 

Regarding the economic component, the Veteran's earnings record from the Social Security Administration (SSA) and his December 2022 VA Form 21-8940 show that the economic component has been satisfied from January 2016 to January 2018, the period under review, as the Veteran has not had substantially gainful employment since 2013. 

With regard to the non-economic component, the Board first considers the Veteran's occupational history, education, skill, and training.  The July 2016 VA examination shows that he reported working as a manager for a department store for about four years.  He then moved to a different state and worked as the owner of a gas station for thirty-six years before retiring in 2013.  His December 2022 VA Form 21-8940 similarly states that he worked as the owner for a gas station from 1977 to 2013, and that he worked 40 hours per week.  Regarding his education, he indicated in that form that he completed college, but had no other education or training.  The November 2022 private psychiatric evaluation states that he reported earning his degree in advertising prior to active service, presumably in reference to his college degree. 

In addition to the evidence discussed in the above section addressing the evaluation of the Veteran's PTSD, the record includes December 2023 and March 2025 vocational assessments by a Certified Rehabilitation Counselor and Certified Vocational Evaluator (hereinafter referred to as a vocational expert) submitted by the Veteran.  The vocational experts opined that the Veteran's PTSD at least as likely as not rendered him unable to secure or follow substantially gainful employment since at least 2013.  

The vocational expert explained that employees with PTSD have greater work absenteeism, a higher number of medical visits, an increased likelihood of unemployment or underemployment, lower hourly pay, and increased difficulty meeting work-related demands.  The vocational expert stated that the Veteran had been unable to satisfy the standards of adequate pace, productivity, reliability, and interpersonal workplace communication due to symptoms associated with PTSD since at least 2013.  In that regard, the Veteran's anxiety, panic attacks, suspiciousness, hypervigilance, and intrusive thoughts distract him and render him off task and unproductive, according to the vocational expert.  The vocational expert stated that such distractibility and time off task would not be tolerated by any employer at any skill or exertional level.  

The vocational expert further noted that the Veteran's PTSD caused increased episodes of depressed mood, a tendency to isolate, and anger and irritability, which impeded his ability to appropriately interact with the general public, coworkers, and supervisors, and would not be tolerated by employers.  

Moreover, the Veteran had concentration and memory impairments, which impaired his ability to complete tasks efficiently and without errors, according to the vocational expert.  The vocational expert stated that the Veteran's impaired sleep further impaired his concentration, leading to additional time off task and further impairing his ability to meet the basic requirements of competitive employment at any skill or exertional level, including sedentary employment.  

The vocational expert summarized that employees are expected to sustain focus on work tasks for at least two consecutive hours at one time, and spend no more than 10 percent of the workday off task.  However, the Veteran's symptoms of hypervigilance, anxiety, suspiciousness, intrusive thoughts, impaired motivation, sleep impairment, and depressed mood would preclude his ability to sustain focus on work tasks to the extent required by employers, according to the vocational expert.  These symptoms would distract the Veteran to the extent that they would preclude him from sustaining concentration for two consecutive hours, which would lead to significant time off task during these periods of distraction, thus precluding his ability to meet minimal production standards, the vocational expert found.  

The vocational expert further found that as a result of these limitations, the Veteran would have difficulty adhering to a structured work schedule and would struggle maintaining pace and concentration when attempting to complete vocational tasks in a timely manner.  He would need regular redirection and reminders to remain on task, repetition of instructions, and encouragement from supervisors, which was not conducive to competitive employment, according to the vocational expert.  As a result, the Veteran's ability to meet employer expectations of pace and productivity would be markedly compromised and he would be considered an unreliable and unproductive employee, the vocational expert stated. 

The vocational expert also noted that the Veteran frequently isolated himself from others, including his family, due to his psychiatric condition and associated symptoms including hypervigilance, panic attacks, anger, and irritability.  The vocational expert stated that there is no field of employment that would allow the Veteran to work in absolute isolation.  Interaction with others, such as a check-in with a supervisor, is required to at least some degree in all employment, and these interactions are expected to be appropriate and professional.  

The Veteran's irritability, suspiciousness, and isolative tendencies would make it difficult for him to work collaboratively with others in the workplace including even minimal check-ins with a supervisor, according to the vocational expert.  The vocational expert observed that while one angry outburst may be reprimanded and forgiven, repeated occurrences are overwhelmingly likely to result in termination.  The vocational expert therefore concluded that the Veteran's tendency to isolate, suspiciousness, and irritability with the potential for outbursts of anger caused social limitations that would not be tolerated by employers in the competitive workforce.

The vocational expert further stated that during the interview the Veteran reported that he experiences frequent concentration and memory challenges affecting his ability to remain on task or follow tasks through to completion.  He stated that he requires his wife's "supervision" to complete tasks due to safety concerns, including driving.  The vocational expert found that the Veteran would not be able to remain on task and productive to the extent required by employers due to these symptoms.  His inability to concentrate and complete tasks during the frequent and unscheduled breaks required to manage his symptoms would further slow the pace at which he was able to complete work tasks throughout the day, interfere with his ability to consistently and reliably produce a certain minimum amount of work each day, and at least as likely as not contribute to his inability to meet employer expectations of adequate pace and productivity, no matter the skill or exertional level, according to the vocational expert. 

The vocational expert stated that, additionally, the Veteran's inability to remain focused and attentive to tasks would not be tolerated by employers due to workplace safety concerns.  The vocational expert opined that the Veteran's inability to meet employer expectations of adequate pace and productivity as a result of his PTSD would not be tolerated by employers, and further contributed to his inability to secure and follow substantially gainful employment, regardless of skill or exertional level, since at least 2013.  

The vocational expert also expressed disagreement with the July 2016 VA examiner.  In that regard, the vocational expert quoted that section of the examination report setting forth the Veteran's personal history as related by him to the examiner.  The vocational expert also quoted the examiner's finding that the Veteran's PTSD caused occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  

The vocational expert then stated, "as noted above, the [V]eteran's PTSD and subsequent secondary symptoms would be distracting to an extent that he would be unable to remain focused on work tasks for 90% of the day as required in competitive employment."  The vocational expert added that the Veteran would be unable to meet pace and production requirements as a result of being off task and would be considered an unproductive and unreliable employee, which would not be tolerated in the workplace.  

The vocational expert also noted that the Veteran expressed thoughts of passive self-harm and harm to others.  The vocational expert noted that during the interview, the Veteran stated that his symptoms have created problems in his marriage and relationships with his family members, and that he often preferred to self-isolate, which would not be tolerated in the national economy "and contradicts the above statements," referring to the quotations from the July 2016 VA examination report discussed in the preceding paragraph. 

The vocational expert further stated that the July 2016 VA examiner noted that the Veteran had been able to complete yardwork and basic home repairs.  The vocational expert stated that the ability to "partake in such activities is in no way reflective of one's ability to maintain substantially gainful employment, as these types of tasks are not performed on a consistent basis and are able to be discontinued at any time as a person's service-related conditions permit." 

The vocational expert also found that the Veteran would be unable to apply any "industry specific transferable skills he may have acquired" from his work history.  Further, despite any transferable skills he may have acquired, his inability to maintain concentration precluded him from executing multi-step processes and completing complex tasks accurately and efficiently, according to the vocational expert.  The vocational expert added that the Veteran was not only precluded from his prior occupation or kindred occupations in the automotive field, but also all occupations in the competitive workforce, outside a protected work environment.  In that regard, the vocational expert stated that the Veteran was unable to meet the basic work requirements of even the sedentary exertional level, multi-task, sustain attention to detail, or maintain adequate concentration and pace to meet productivity standards at substantially gainful activity levels. 

The vocational expert asserted that the Veteran received considerable accommodations that are outside employer tolerances in the competitive labor market.  In that regard, he had flexible work schedules since he made his own schedule, and flexible job duties, since his wife assumed all responsibility for the day-to-day operations of the business.  

The vocational expert stated that although the Veteran obtained a bachelor's degree, he would be unable to apply any skills he may have obtained from his educational background or prior skilled work experience to sedentary work tasks in a meaningful and effective manner given his limitations in performing the basic requirements of all competitive employment.  The vocational expert reiterated that the Veteran's reduced pace, productivity, and reliability would not be tolerated in even simple, unskilled sedentary occupations and entirely negate any skills he may have acquired throughout his employment history or educational attainments.  The vocational expert also noted that the Veteran's impaired concentration, anger, and impulsive behavior, as well as his communication limitations would not be tolerated in even simple, unskilled sedentary occupations. 

The November 2022 private psychiatric evaluation states that the Veteran's history of altercations in the workplace and ongoing outbursts of irritability were strong evidence that he was not able to manage the appropriate and effective communication required for employment.  The psychiatrist noted that as the operator of his own business, the Veteran received special accommodations that would not usually be found in the general labor market.  In that regard, he made his own hours, working an abbreviated schedule, and adjusted his job duties.  The psychiatrist added that it got to the point that the Veteran argued with everyone so much that he could no longer keep his business staffed and profitable.  The psychiatrist concluded in the November 2022 and March 2025 evaluations that the Veteran's PTSD has been totally disabling since 2013, and that his PTSD symptoms have "barred him" from maintaining gainful employment since at least 2013.

The evaluations by the private vocational experts and private psychiatrist are probative, as they represent the conclusions of professionals with relevant expertise in their respective fields, are based on interviews with the Veteran and detailed reviews of his medical and work history, and are supported by explanations sufficient for the Board to make an informed decision. 

Accordingly, resolving reasonable doubt in favor of the Veteran the Board finds that the non-economic component is satisfied. See 38 U.S.C. § 5107.  

In sum, the criteria for TDIU due to PTSD from January 19, 2016 to January 1, 2018 have been met.  See 38 C.F.R. § 4.16.

 

 

P.M. DILORENZO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Rutkin

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.