Citation Nr: 1749107	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  12-30 481	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Fort Harrison, Montana


THE ISSUES

1.  Entitlement to an increased rating for a psychiatric disability, to include posttraumatic stress disorder (PTSD), in excess of 50 percent prior to September 30, 2014, and in excess of 70 percent as of September 30, 2014.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to September 30, 2014.


REPRESENTATION

Appellant represented by:	Christopher Loiacono, Agent


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

H. Ahmad, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1969 to March 1972.

This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2011 and March 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana.  The Veteran testified before the undersigned at a July 2014 hearing at the RO.  A transcript of that hearing is of record.

An April 2015 rating decision granted TDIU effective September 30, 2014.  The decision also increased the rating for PTSD to 70 percent, effective September 30, 2014.  As that higher rating does not constitute a grant of the full benefit sought on appeal, the claim for increase remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).

In January 2015, the Board remanded the claims for further development.  In light of the medical opinion obtained, and the further adjudicatory actions taken by the RO, the Board finds that there has been substantial compliance with the remand requests.  Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999).  


FINDINGS OF FACT

1.  Resolving reasonable doubt in favor of the Veteran, PTSD symptoms during the appeal period have resulted in occupational and social impairment with deficiencies in most areas, but not total social impairment.

2.  As of February 28, 2012, but not earlier, the Veteran has been unable to secure or follow a substantially gainful occupation by reason of service-connected disability.


CONCLUSION OF LAW

1.  The criteria for a rating of 70 percent, but not higher, for PTSD were met during the appeal period.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9434 (2016).

2.  As of February 28, 2012, but not earlier, the criteria for TDIU were met.  38 U.S.C.A. §§ 1155, 5101(a), 5121, 5121A (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION


The Board has thoroughly reviewed all the evidence in the claims file.  While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on behalf of the Veteran.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence of record.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  Equal weight is not given to each piece of evidence contained in the record.  Every item of evidence does not have the same probative value.  When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Duties to Notify and Assist

VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016).  VA also has a duty to assist Veterans in the development of claims.  38 U.S.C.A. §§ 5103, 5103A (West 2014).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2016); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will provide; and (3) that the claimant is expected to provide.  The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The notice requirements apply to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability.  The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The notification requirements were met in correspondence to the Veteran dated in April 2011 and January 2012. 

VA has done everything reasonably possible to assist the Veteran with respect to the claim.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2016).  The service medical records have been associated with the claims file.  All identified and available treatment records have been secured, which includes VA examinations and VA and private health records.

The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  Green v. Derwinski, 1 Vet. App. 121 (1991).  When VA provides an examination, that examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007). 

The Veteran has been provided with multiple VA examinations, most recently in March 2015.  The examiners reviewed the claims file and past medical history, and made appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board concludes that the VA examination reports are adequate for the purpose of making a decision.  38 C.F.R. § 4.2 (2016); Barr v. Nicholson, 21 Vet. App. 303 (2007). 

The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist.  Accordingly, the Board will proceed with a decision.

Increased Rating

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities.  38 C.F.R. Part 4 (2016).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2016). 

The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2016). 

The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Psychiatric disabilities are rated using the General Rating Formula for Mental Disorders.  38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (2016).

A 30 percent rating is warranted for a mental disorder when there is 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).  38 C.F.R. § 4.130 (2016).

A 50 percent rating is warranted for a mental disorder when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130 (2016).

A 70 percent rating is warranted for a mental disorder when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.  38 C.F.R. § 4.130 (2016).

A 100 percent rating is warranted for a mental disorder when there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name.  38 C.F.R. § 4.130 (2016).

The symptoms listed in the General Rating Formula are examples, not an exhaustive list, and it is not required to find the presence of all, most, or even some of the enumerated symptoms.  Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate rating to be assigned for a service-connected mental disorder, the focus is on how the frequency, severity, and duration of the symptoms affect the Veteran's occupational and social impairment, rather than on the presence or absence of particular symptoms listed in the schedular criteria.  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). 

Relevant to a rating of the level of impairment caused by mental disorders is the score on a Veteran's Global Assessment of Functioning (GAF) Scale.  That scale is found in the American Psychiatric Associations' Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and indicates the examiner's opinion on the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  The assigned GAF scores increase or decrease as the Veteran's level of psychiatric impairment improves or declines.  A GAF score of 61 to 70 indicates some mild symptoms, or some difficulty in social, occupational, or school functioning.  In such cases, however, the Veteran is generally functioning pretty well, with some meaningful interpersonal relationships.  A GAF score of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning.  Richard v. Brown, 9 Vet. App. 266 (1996).

The nomenclature in DSM IV has been specifically adopted by VA in the rating of mental disorders.  38 C.F.R. § 4.125, 4.130 (2016).  While important in assessing the level of impairment caused by psychiatric illness, the GAF score is not dispositive of the level of impairment cause by such illness.  Rather, it is considered in light of all of the evidence of record.  Brambley v. Principi, 17 Vet. App. 20 (2003); Bowling v. Principi, 15 Vet. App. 1 (2001).

Effective March 19, 2015, VA revised the Schedule for Rating Disabilities with respect to the rating criteria for mental disorders.  The revisions replaced references in earlier editions of the DSM with revisions in the recently updated Fifth Edition (DSM-5).  Those revisions apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014.  Because this case was certified to the Board prior to August 4, 2014, the revised regulations do not apply.

The Veteran contends that the disability ratings assigned for PTSD do not accurately compensate the severity of PTSD.  The present claim for an increased rating arises from service connection for PTSD that was originally granted in an August 2005 rating decision.  

Individual therapy session notes from June 2010 through April 2011 indicate the Veteran experienced symptoms including depressed mood, anxiety, blunted affect, sleep disturbances, low energy levels, frequent nightmares, chronic traumatic memories, and inability to leave the home most days of the week.  On examination during this period, the Veteran consistently showed normal grooming and hygiene.  He was alert and oriented to person, place, and time.  Speech was of regular rate and rhythm.  The Veteran denied suicidal and homicidal ideation.  Examiners consistently assigned a GAF of 61.

At a May 2011 VA examination, the Veteran reported symptoms including depressed mood, memory impairment, panic attacks several times a week, feelings of melancholy, feelings of helplessness, loss of interest, impaired impulse control, and low energy levels.  The Veteran had been divorced twice, but saw his ex-wife to play cards.  The Veteran had little contact with his two children or three brothers.  He denied any leisure pursuits.  On examination, the Veteran was alert and oriented to person, place, and time.  The Veteran was adequately groomed.  The Veteran's attitude was withdrawn, and affect was flat.  The Veteran reported no delusions or hallucinations.  The Veteran experienced occasional suicidal ideation, with no intent or plan.  He reported he was able to maintain minimal personal hygiene and basic activities of daily living, but that there was some neglect.  The examiner noted that the Veteran experienced symptoms of PTSD, including re-experiencing trauma in the form of nightmares, daily intrusive memories, avoidant behavior, feelings of detachment, and heightened arousal in the form of hypervigilance and irritability.  The examiner diagnosed PTSD with a depressive component, and assigned a GAF of 55.  The examiner noted that the Veteran's psychotherapist had suggested a diagnosis of bipolar disorder.  The examiner was unable to confirm a diagnosis of bipolar disorder at that time due to the absence of manic episodes.  The examiner opined that symptoms of PTSD caused occupational and social impairment with reduced reliability and productivity.  The examiner noted that the Veteran was unemployed due to a physical disability, and thus the effects of PTSD on employment were not as relevant.

Individual therapy session notes from June 2011 through December 2011 indicate the Veteran experienced symptoms including depressed mood, increased anxiety, weekly panic attacks, blunted affect, sleep disturbances, low energy levels, frequent nightmares, chronic traumatic memories, and hypervigilant behaviors.  The Veteran admitted to thoughts of self-harm and suicide during this period, but stated he had no plans or intent.  On examination, the Veteran consistently showed normal grooming and hygiene.  He was alert and oriented to person, place, and time.  Speech was of regular rate and rhythm.  Examiners consistently assigned a GAF of 61.

In a January 2012 private psychiatric assessment and treatment plan note, the Veteran reported symptoms including depressed mood, anxiety, panic attacks, low energy levels, decreased appetite, sleep disturbances, isolation, feelings of hopelessness and helplessness, feelings of guilt, irritability, angry outbursts, nightmares, flashbacks, being easily startled, difficulty trusting others, and suicidal ideation.  The examiner noted evidence of detachment and avoidant behaviors.  The Veteran reported he had been married twice and had two children, with whom he did not have regular contact.  He remained in contact with one ex-wife.  On examination, the Veteran was clean and well-groomed.  Mood was depressed, and affect was blunted, with minimal reactivity.  Speech was normal with regular rate and rhythm.  Thoughts were linear and goal-directed, with appropriate content.  Concentration and focus were good.  The Veteran denied suicidal or homicidal ideation.  The examiner diagnosed PTSD, major depressive disorder, and panic disorder, and assigned a GAF of 50.  In a February 2012 addendum, the examiner opined that the Veteran was not capable of performing fulltime competitive work.

At a July 2012 VA examination, the Veteran reported depressed mood, anxiety, panic attacks occurring weekly or less often, suspiciousness, and chronic sleep impairment.  He stated he rarely left his home during the winter, and became anxious in the presence of others.  The Veteran reported his last marriage had ended nine years prior, and that his last intimate relationship was four years prior.  He had not dated since then.  The examiner noted PTSD symptoms including re-experiencing trauma in the form of recurrent and distressing recollections, and dreams, persistent avoidance and numbing behavior, and persistent symptoms of increased arousal in the form of difficulty concentrating, hypervigilance, and exaggerated startle response.  The examiner diagnosed PTSD and assigned a GAF of 55.  The examiner opined that the symptoms of PTSD caused occupational and social impairment with reduced reliability and productivity.  Regarding the ability to obtain and sustain gainful employment, the examiner opined that the mental status examination was essentially unremarkable, and did not reveal any significant problems with judgment, insight, or abstract reasoning.  The examiner stated that the Veteran should be capable of performing low skilled work that requires only limited interpersonal contact.

At a December 2013 VA examination, the Veteran reported symptoms including depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty establishing and maintaining relationships.  The examiner noted symptoms of PTSD including nightmares and unwanted memories several times a week, generalized fear and anxiety, persistent thoughts of danger, and feelings of detachment, heightened startle reaction, hypervigilance, irritability, sleep disturbances, and avoidant behavior.  The Veteran was currently living with a roommate.  He no longer attended his weekly poker group.  On examination, the Veteran was alert and oriented to person, place, and time.  Thought processes were clear and goal-oriented.  The Veteran did not report any hallucinations or delusions.  The Veteran did not have suicidal or homicidal ideations.  The examiner diagnosed PTSD, and opined that symptoms of PTSD caused occupational and social impairment with reduced reliability and productivity.  Regarding work, the examiner noted that the Veteran stopped working in 1990 due to physical injuries, not due to PTSD symptoms. 

Individual therapy notes from September 2013 through April 2014 indicate the Veteran continued to struggle with depression and anxiety.  The Veteran reported nightmares, flashbacks, difficulty sleeping, increased isolation, social phobia, feelings of anger, unstable moods, and feelings of helplessness and hopelessness.  On examination during this period, the Veteran's mood was depressed and affect was flat.  The Veteran was alert and oriented to person, place, and time.  He denied hallucinations and delusions.  The Veteran denied suicidal or homicidal ideations.

In a June 2014 private psychiatric assessment, the examiner noted symptoms including deficiencies in family relations, persistent irrational fears, depression affecting the ability to function independently, appropriately, and effectively, the intermittent inability to perform activities of daily living, deficiencies in mood, difficulty adapting to stressful circumstances, intrusive recollections of trauma, the inability to establish and maintain effective relationships, and deficiencies in judgment.  The Veteran reported recurrent, weekly nightmares, flashbacks, intrusive thoughts, hypervigilance, hyperarousal, and avoidant behaviors.  The Veteran reported having extreme difficulty being in public and around groups of people.  The examiner diagnosed PTSD, social phobia, and bipolar disorder NOS, and assigned a GAF of 56. 

At a July 2014 hearing, the Veteran reported symptoms including depressed mood, anxiety attacks, difficulty sleeping, loss of interest in activities, social isolation, difficulty concentrating, intrusive thoughts, and suicidal thoughts.  The Veteran also stated he was easily angered and irritable, and had been involved in physical altercations.  The Veteran reported that his psychiatric symptoms affected his ability to get along with people, and that he did not think he could handle interacting with coworkers.  He also stated he could not work a normal workweek due to his erratic sleeping behavior and difficulty concentrating.

In a September 2014 private psychiatric assessment, the Veteran reported general anxiety and tension, depressed moods, and flashbacks.  On examination, the Veteran appeared guarded and highly tense.  He was alert and oriented to person, place, and time.  The Veteran's mood was depressed, and affect was somewhat constricted.  Abstract thinking ability was intact, and thought processes were normal.  Speech was clear, and well-articulated.  Attention and concentration were adequate.  The Veteran did not report hallucinations or delusions.  The Veteran manifested feelings that life had little value or meaning, but stated he was not suicidal and had no plans to hurt himself.  The examiner noted a significant sense of hopelessness.  The examiner diagnosed major depressive disorder, PTSD, social and social anxiety, and assigned a GAF of 48.  The examiner noted the Veteran demonstrated deficiencies in family relations, persistent irrational fears, depression affecting the ability to function independently, appropriately, and effectively, the intermittent ability to perform activities of daily living, deficiencies in mood, difficulty adapting to stressful circumstances, intrusive recollections of trauma, the inability to establish and maintain effective relationships, and deficiencies in judgment.  The examiner opined that the Veteran was psychologically impaired to an extent that he should not presently attempt to return to the workforce, as he could not function in a competitive employment environment.  

At a March 2015 VA examination, the Veteran reported symptoms including depressed mood, anxiety, weekly panic attacks, sleep disturbances, and isolation.  The Veteran reported that he lived with a roommate.  The Veteran stated that he did not leave the home often.  He also stated he did not have friends, and only had occasional contact with his children.  The examiner noted PTSD symptoms including recurrent, distressing memories and dreams, markedly diminished interest or participating in significant activities, feelings of detachment, irritable behavior and angry outbursts, reckless or self-destructive behavior, hypervigilance, problems with concentration, and avoidant behaviors.  On examination, the Veteran's grooming was unremarkable.  The Veteran's mood was subdued and listless, and affect was dysphoric.  The examiner diagnosed PTSD and opined that the symptoms of PTSD caused occupational and social impairment with deficiencies in most areas.  The examiner noted that the Veteran's ability to interact with others such as co-workers or the public was highly questionable, and that he would not be able to perform daily tasks at work due to low energy, low motivation, and poor concentration.  The examiner opined that it was unlikely that the Veteran would be able to secure or follow substantially gainful employment due to PTSD symptoms and associated depression.

Based upon the outpatient treatment records, private psychiatric assessments, and the VA examination reports, the Board finds that the criteria for a 70 percent rating for PTSD have been more nearly approximated during the appeal period, as the Veteran is shown to have had deficiencies in most areas due to psychiatric symptoms during that period. 

In considering whether the Veteran was entitled to a higher rating, the Board has carefully considered the contentions and assertions that psychiatric disability was of such severity so as to warrant a 100 percent schedular rating for the entire appeal period.  In making a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which are found to be persuasive or unpersuasive, and provide the reasons for the rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The Veteran is competent to report symptoms, such as depressed mood, nightmares, and flashbacks, because that requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465 (1994).  However, the Board finds that the objective evidence does not demonstrate symptoms that more nearly approximate a higher rating under the General Rating Formula for Mental Disorders.  The Board finds that total occupational and social impairment is not shown as the Veteran is shown to have maintained some relationship with his ex-wife and roommate, which precludes a finding of total social impairment.  Therefore, as both total occupation and social impairment are required for a 100 percent schedular rating, the Board finds that a 100 percent schedular rating is not warranted.

Accordingly, the Board finds that the evidence supports the assignment of a 70 percent rating for PTSD.  The Board finds that the preponderance of the evidence is against the assignment of a rating greater than 70 percent for PTSD.  All reasonable doubt has been resolved in favor of the Veteran in assigning the rating.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016).  

TDIU

It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled.  38 C.F.R. § 4.16 (2016). 

Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn a livelihood with earnings common to the particular occupation in the community where the Veteran resides.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  Marginal employment will not be considered substantially gainful employment.  38 C.F.R. § 4.16(a) (2016).

TDIU may be assigned, if the schedular rating is less than total, 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 service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more.  38 C.F.R. § 4.16(a) (2016).

The central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19 (2016); Van Hoose v. Brown, 4 Vet. App. 361 (1993).

A claim for TDIU presupposes that the rating for the service-connected disabilities is less than 100 percent, and only asks for a TDIU because of subjective factors that the objective rating does not consider.  Vittese v. Brown, 7 Vet. App. 31 (1994).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).

The Veteran has currently been assigned a 70 percent rating for PTSD as of April 5, 2011.  The Board finds that the evidence of record showed that symptoms of PTSD made the Veteran unable to secure or follow a substantially gainful occupation due to the severity of symptoms as of February 28, 2012.  In a February 2012 private psychiatric assessment conducted by a psychiatric nurse practitioner with whom the Veteran met regularly, the nurse opined that psychiatric symptoms would prevent the Veteran from performing fulltime, competitive work.  The Board finds that the evidence of record is consistent with that opinion and the Board finds that opinion persuasive.  

Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that TDIU is warranted as of February 28, 2012, but not earlier.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016).


ORDER

Entitlement to a 70 percent rating, but not higher, for PTSD as of April 5, 2011, but not earlier, is granted.

Entitlement to TDIU as of February 28, 2012, but not earlier, is granted.



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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