Citation Nr: 18160475
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 15-42 833
DATE:	December 26, 2018
ORDER
1. A rating greater than 70 percent for service-connected posttraumatic stress disorder (PTSD) with major depressive disorder is denied.
2. An effective date earlier than May 12, 2008, specifically, May 12, 2007, for the grant of a 70 percent rating for service-connected PTSD with major depressive disorder, is granted.
3. An effective date earlier than April 17, 2014, specifically, May 12, 2007, for the grant of a total rating based on individual employability (TDIU) due to service-connected PTSD with major depressive disorder is granted.
FINDINGS OF FACT
1. During the entire appellate period, the Veteran’s service-connected PTSD with major depressive disorder has not been manifested by 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, or symptoms of the same type and degree.
2. The Veteran’s claim of entitlement to a TDIU which included a claim of entitlement to an increased rating for service-connected PTSD with major depressive disorder was received by the Department of Veterans Affairs (VA) on May 12, 2008. 
3. It is factually ascertainable that the Veteran’s service-connected PTSD with major depressive disorder increased in severity in the year prior to his May 12, 2008, claim of entitlement to an increased rating, by May 12, 2007.
4. It is factually ascertainable that the Veteran’s service-connected PTSD with major depressive disorder increased in severity such that a TDIU was warranted in the year prior to his May 12, 2008, claim of entitlement to a TDIU, by May 12, 2007.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 70 percent for service-connected PTSD with major depressive disorder have not been met during the entire appellate period.  38 U.S.C. §§ 1155, 5107, 5110(b)(2); 38 C.F.R. §§ 3.400 (o)(2), 4.2, 4.3, 4.7, 4.27, 4.126, 4.130, Diagnostic Codes (DCs) 9434-9411.
2. The criteria for an effective date of May 12, 2007, for the grant of a 70 percent rating for service-connected PTSD with major depressive disorder, are satisfied.  38 U.S.C. §§ 501, 5101, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400, 4.130, DCs 9434-9411.
3. The criteria for an effective date of May 12, 2007, for the award of a TDIU due to service-connected PTSD with major depressive disorder are satisfied.  38 U.S.C. §§ 501, 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.340, 3.341, 3.400, 4.15, 4.16.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from August 1966 to June 1968 and was awarded the Combat Infantryman’s Badge and Purple Heart.
Increased Rating
Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability.  38 U.S.C. § 1155.  It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor.  38 C.F.R. § 4.3.  If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7. 
The Veteran bears the burden of presenting and supporting a claim for benefits.  38 U.S.C. § 5107 (a).  A layperson is competent to report on the onset and continuity of observable symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  In its evaluation, the Board considers all information and lay and medical evidence of record.  38 U.S.C. § 5107 (b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. 
Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board will assign staged ratings for separate periods of time.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The issue on appeal arises from a claim for an increased disability rating received on May 12, 2008.  The relevant temporal focus for adjudicating the level of disability of an increased rating claim is from the time period one year before the claim was filed; in this case, May 12, 2007, until VA makes a final decision on the claim.  38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2).
The Board has considered the Veteran’s claim and decided entitlement based on the evidence.  The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
The record before the Board contains voluminous post-service treatment records, which will be addressed as pertinent.  Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence.).  Specifically, the Veteran’s VA treatment records dated during the current appellate period include numerous instances of psychotherapy; review of such indicates that he presented with similar complaints and symptoms as those reported during VA examinations. 
Entitlement to a rating in excess of 70 percent for service-connected PTSD with major depressive disorder.
The Veteran’s PTSD with major depressive disorder is rated pursuant to 38 C.F.R. § 4.130, DCs 9434-9411.  By a November 1993 rating decision, the VA Regional Office (RO) granted service connection for PTSD and assigned the same an initial 10 percent rating, effective October 16, 1992, and in a February 1995 rating decision, the RO increased the initial rating to 50 percent.  In the February 2009 rating decision on appeal, the RO increased the rating to 70 percent, effective May 12, 2008.  In a September 2014 rating decision, the RO captioned the Veteran’s disability as PTSD with major depressive disorder and continued the 70 percent rating and rated such under DCs 9434-9411.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  In this case, both DCs 9434 and 9411 are part of the General Rating Formula for Mental Disorders.  38 C.F.R.         § 4.130.
Under the General Rating Formula for Mental Disorders, in pertinent part, a 70 percent rating is warranted for PTSD when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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 the inability to establish and maintain effective relationships.  38 C.F.R. § 4.130, DCs 9434-9411.
A 100 percent rating is warranted for PTSD if 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; 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.  See 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.  See 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-IV).  Id. at 443; see 38 C.F.R.     § 4.130. 
(The DSM-IV has been recently updated with a Fifth Edition (DSM-5), and VA has amended certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities. 79 Fed. Reg. 45093, 45094 (Aug. 4, 2014). The amendments only apply to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014; they do not apply to appeals already certified to the Board or pending before the Board.  Id. 
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).  Accordingly, 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.  See Vazquez-Claudio, 713 F.3d at 118.  Also, the Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness; however, in light of the recent decision in Golden v. Shulkin, GAF scores are not used to assess the severity of the Veteran’s disability throughout the appeal period. Golden v. Shulkin, 2018 U.S. App. Vet. Claims LEXIS 202, (Vet. App. February 23, 2018). 
During VA treatment in June 2007, the Veteran reported that while his depressive symptoms were improving, his irritability was still problematic, and he continued to lose his temper.  In August and September 2007 VA treatment sessions, the Veteran reported continued difficulty with communication at home.  During VA treatment in January 2008, the Veteran reported nightmares and intrusive thoughts, and the treatment provider reported that his other arousal symptoms “scored high,” and he presented dysthymic and agitated.  During VA treatment in February 2008, the Veteran reported continued conflict with his wife and reported grabbing her out of frustration last week; his affect was down and subdued.
On VA examination in January 2009, the Veteran reported that he been married to his current wife since 1969, with some problems and described his marriage as unstable.  He reported that he was close to his adult children and visited them regularly, although he argued with one son regularly, and that he had one close friend, with whom he socialized rarely.  He complained that his ability to complete the activities of daily living suffered and sometimes he would go one month without showering or shaving.  He complained of nightmares, one to three times each week, and reported that he avoided talking to people when he was having intrusive thoughts.  He complained of flashbacks, once monthly, and being startled easily.  He reported that he did not like to be approached from behind and that he avoided crowds; although he managed to attend Christmas programs and sports for his grandchildren.  He reported that his temper was “okay” but that he sometimes destroyed objects when he was frustrated.  He complained of suicidal ideation, the last time being three weeks prior, without plain or intent, and homicidal ideation, on occasion, without plan or intent.  
He reported that his symptoms impacted his work performance minimally, as long as he was not frustrated, and that he was able to perform work duties without difficulty, although he sometimes smashed objects when building things and he missed 30 or 40 days of week each year.  He reported that he sometimes became angry with his boss, and was once told to take off a month of work when he was working at the VA in Virginia, as he had threatened to kill his bosses after being reprimanded.  On mental status examination, his hygiene was unremarkable, his affect was constricted, he had an irritable mood, his thought processes were “off-task,” and he was highly distractible.  The examiner reported that the Veteran’s symptoms appeared to be moderately impacting his functioning, and that he was able to maintain his activities of daily living, including personal hygiene, and that he had an occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks.
During VA treatment in June 2010, the Veteran presented with an intermittently depressed mood, with sustained mood symptoms, in response to marital discord.  In December 2011, a VA treatment provider reported that the Veteran presented with marital problems, a depressed mood, an affect that was congruent with mood, and strained insight and judgment.
On VA examination in April 2014, the Veteran complained of nightmares, two to four times each week, intrusive thoughts of combat several times each week, and panic attacks less than once each week.  He reported brief dissociative episodes everyday where he would find himself “spacing out,” and reported that he avoided talking about combat, and that he tried to avoid crowds in part because he had a bad habit of telling people what he thought.  He reported that he tried to ignore people around him when he watched his granddaughter’s sporting events.  He complained of sleep disturbance, with five hours of sleep each night, and emotional detachment from others.  He complained of irritability, and denied verbal outbursts.  He complained of concentration problems and exaggerated startle response.  He complained of deceased motivation, interest, and energy, with helplessness and hopelessness.  The examiner reported that the Veteran experienced anxiety, suspiciousness (hypervigilance), depression, chronic sleep impairment, mild memory loss, disturbance in motivation and mood, and difficulty in adapting to stressful circumstances.  He reported suicidal ideation, monthly, but reported that financial concerns prevented him from acting on it.  He admitted that he had not reported such to his current treatment providers.  He denied obsessional or ritualistic behavior and denied inappropriate behavior.  Mental status examination revealed that the Veteran had a normal affect and mood, save for tearfulness when discussing his suicidal ideation; all other aspects were unremarkable.  
The examiner reported that the Veteran’s symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood.  The examiner reported that the Veteran was having significant issues with his disability and there was a history of difficulty working with others, due to his irritability, and he had difficulty responding to stressful circumstances and experiences, with monthly suicidal ideation.  The examiner expressed concern that the Veteran’s suicidal ideation would worsen if he were to try to manage the requirements of full-time employment and concluded that the Veteran would not be able to manage the duties associated with full-time employability at this time given his disability.  
During VA treatment in September 2014, the Veteran reported that he was struggling with anger, irritability, and depression, and presented with an anxious mood.  In November 2014, a VA treatment provider reported that the Veteran endorsed depression.  In May 2015, a treatment provider reported that the Veteran had a euthymic mood, and in June 2015, he had a depressed mood.  During VA treatment in August 2015, the Veteran reported that he was stressed about national and local political issues, and complained of increased psychiatric symptoms, including increased fatigue; he presented with an anxious mood.  During VA treatment in September 2015, the treatment provider reported that the Veteran’s hygiene was casual but appropriate, and he had some difficulty recalling names.
In a February 2017 statement, the Veteran’s wife reported that since 2007, she had observed the Veteran experience a number of symptoms including avoidance of reminders of service, guilt, avoidance of workplace stress, anger, fatigue, the impaired ability to manage everyday tasks, negative feelings about himself, social isolation, poor memory, disturbed sleep, restlessness, flashbacks, paranoia, hypervigilance, an exaggerated startle response, and detachment.  She reported that he helped working on local farms from 2001 to 2004, and that he would just walk away from work because of how frustrated he would get, and that anger with himself or at things that would go wrong on the job would send him over the edge and he would have to stop work for the rest of the day.  She reported that since 2007, he spent time at home, and that he tired easily and needed help from his son just to do their farm chores.  She reported that he did not like to go out in public, especially alone, and that she had to remind him to take his medicine, and that he forgot things frequently, even people he had known for a long time.
In a February 2017 statement, the Veteran reported that since 2007 he had experienced a number of symptoms to include disturbed sleep with nightmares, anger, social isolation and distrust, poor memory, detachment, hypervigilance, panic attacks that take him out of service for an entire day or two, intrusive thoughts, flashbacks, depression, and low self-esteem.  He reported that he last worked in 2001, when his brother in law sold his farmland, and that the tried to work for himself for three years, but had a difficult time with working with others.  He reported that he leased land in 2001, herding cattle and farming, but the weather and economy were against him, and he decided he needed to take retirement from the Social Security Administration (SSA).  He reported that he could work on a farm alone, but other jobs were out of the question.  He reported that he worked with someone helping bail hay, and had trouble getting along with him.  He noted that his anger consistently got him into trouble while trying to work, that he would get irritated by strangers in public, or anytime someone was bugging him, and he could not help letting people know what he thought.  He reported that he had learned to walk away in recent years, and it was not often that he just exploded, but it was worse when he was working.  He reported that he needed to try to concentrate, and that his anxiety randomly spiked and derailed him from he what he needed to be doing, and that he relied on his wife to manage his daily needs, and that he had trouble remembering where he put things.  He noted that he avoided going in public, and if went out to eat, he sat with his back to the wall; and that he went to the grocery store only with his wife.   
Based on the lay and clinical evidence of record, the Board finds that during the entire appellate period, the Veteran’s service-connected PTSD with major depressive disorder has been manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, mood, due to such symptoms as:  suicidal ideation; 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 the inability to establish and maintain effective relationships, warranting a 70 percent rating.  38 C.F.R. § 4.130, DCs 9434-9411. 
While the Veteran has demonstrated suicidal ideation, near-continuous panic or depression, impaired impulse control, and neglect of personal appearance and hygiene, as well as dissociative episodes related to flashbacks that the Board finds to be of the same type of degree of the symptom of spatial disorientation contemplated by the rating criteria warranting a 70 percent rating, and the inability to establish and maintain effective relationships, he has not demonstrated symptoms equivalent in severity, or symptoms of the same type and degree, to those contemplated by the rating criteria for a 100 percent rating.  Mauerhan, 16 Vet. App. 436, 442. 
While his thought processes have been described as “off-task” on VA examination in January 2009, there is no evidence or assertion that the Veteran has demonstrated gross impairment in thought processes or communication.  There is no evidence or assertion of persistent delusions or hallucinations or grossly inappropriate behavior or persistent danger of hurting self or others.  The Veteran reported, during his January 2009 VA examination, that he was told to take a month off from work at the VA in Virginia due to threatening to kill his bosses after a reprimand; however, his work history indicates that he worked at the VA in Virginia in the 1990s, years before the current appellate period.  While the Veteran, during VA treatment in February 2008, reported that he had grabbed his wife out of frustration, and has reported suicidal ideation, without intent or plan, numerous times, there is no evidence or assertion that he is in persistent danger of hurting himself or others.  The Veteran has reported that he has gone a month without showering or shaving, during VA examination in January 2009, however, he has presented during the entire appellate period with adequate hygiene and grooming and no examiner or treatment provider has determined that the Veteran has an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene).  
There is no evidence or assertion that the Veteran is disoriented to time or place.  While the Veteran and his wife reported, in their February 2017 statements, that the Veteran has memory loss, including forgetting people he has known for years, and forgetting where he put things or forgetting to take his medication; on VA examination in April 2014, only mild memory loss was found.  There is no evidence or assertion that the Veteran has memory loss for names of close relatives, own occupation, or own name.  Id.  As such, a 100 percent schedular rating is not warranted.  38 C.F.R. § 4.130, DCs 9434-9411. 
The Board thus finds that the Veteran’s disability picture related to his service-connected PTSD with major depressive disorder warrants a 70 percent rating and that the symptoms discussed herein that warrant a 70 percent rating were present during the entire appellate period.  The Board has considered whether a higher rating might be warranted for any time during the pendency of this appeal.  Hart, 21 Vet. App. 505.  However, the Board finds that the evidence of record demonstrates that during the entire appellate period, the Veteran’s service-connected disability does not warrant a rating in excess of 70 percent.  The claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Earlier Effective Date
Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 5110 (a); 38 C.F.R. § 3.400. 
The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the application is received within one year from such date; otherwise, it is the date of receipt of the claim.  38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400 (o).  The grant of a TDIU is an award of increased disability compensation for purposes of assigning an effective date. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009), Dalton v. Nicholson, 21, Vet. App. 23, 32-34 (2007); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991).  Thus, the effective date of an award of increased compensation may be assigned up to one year prior to the date of claim, if an ascertainable increase in disability is established during that period.  Hazan v. Gober, 10 Vet. App. 511, 519 (1992); see also Hart, 21 Vet. App. 505, 509-10 (noting that “the relevant temporal focus” in an increased rating claim is on “the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.”)
With respect to the date of claim, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under VA law.  38 U.S.C.§§ 501, 5101; 38 C.F.R. § 3.151.  Effective prior to March 2015, VA regulation provided that any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim.  38 C.F.R. § 3.155 (a); Brannon v. West, 12 Vet. App. 32, 34-5 (1998).  Such informal claims must identify the benefit sought.  38 C.F.R. § 3.155 (a).  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  Id.  If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim.  Id.  Although this regulation is no longer extant, because it was in effect during the pendency of this appeal, it is applicable to the present case.
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; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 55 (when the evidence supports the claim or is in relative equipoise, the claim will be granted).
1. Entitlement to an effective date earlier than May 12, 2008, for the grant of a 70 percent rating for service-connected PTSD with major depressive disorder.
The Veteran filed his claim of entitlement to an increased rating for his service-connected PTSD with major depressive disorder, in the form of a claim of entitlement to a TDIU, on May 12, 2008, and no party asserts otherwise.  Neither the Veteran nor his attorney assert that there is an earlier communication as to this claim.
It appears that the Veteran asserts entitlement to an effective earlier than May 12, 2008, for the grant of a 70 percent rating for service-connected PTSD with major depressive disorder, as he specifically seeks an effective date of May 12, 2007, on the basis that the effective date of an award of increased compensation may be assigned up to one year prior to the date of claim, if an ascertainable increase in disability is established during that period.  Hazan, 10 Vet. App. 51.
Under the pertinent rating criteria, in pertinent part, a 70 percent rating is warranted for PTSD when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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 the inability to establish and maintain effective relationships.  38 C.F.R. § 4.130, DCs 9434-9411.
The Board has reviewed the Veteran’s VA treatment records dated since May 12, 2007.  During VA treatment in June 2007, the Veteran reported that while his depressive symptoms were improving, his irritability was still problematic, and he continued to lose his temper.  In August and September 2007 VA treatment sessions, the Veteran reported continued difficulty with communication at home.  During VA treatment in January 2008, the Veteran reported nightmares and intrusive thoughts, and the treatment provider reported that his other arousal symptoms “scored high,” and he presented dysthymic and agitated.  During VA treatment in February 2008, the Veteran reported continued conflict with his wife and reported grabbing her out of frustration last week; his affect was down and subdued.
Based on the Veteran’s January 2009 VA examination, the RO granted a 70 percent rating in the February 2009 rating decision on appeal, effective May 12, 2008, the date of the Veteran’s claim.  However, an ascertainable increase in disability is established during the period in the year prior to the Veteran’s May 12, 2008, claim, as symptoms contemplated by the rating criteria warranting a 70 percent rating were present.  Specifically, there is evidence of impaired impulse control (such as unprovoked irritability with periods of violence), as the Veteran, in June 2007, complained of problematic irritability and reported that he continued to lose his temper, and that the Veteran complained of agitation and irritability and admitted, during VA treatment in February 2008, grabbing his wife out of frustration.  Id. 
As such, it is ascertainable that an increase in disability had occurred in the year prior to the Veteran’s claim of entitlement to an increased rating; an effective date of May 12, 2007, one year prior to the Veteran’s May 12, 2008, claim of entitlement to an increased rating for his service-connected PTSD with major depressive disorder, but not earlier, for the grant of a 70 percent rating, is granted.  38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400 (o).
2. Entitlement to an effective date earlier than April 17, 2014, for the grant of a TDIU due to service-connected PTSD with major depressive disorder.
The Veteran filed his claim of entitlement to a TDIU on May 12, 2008, and no party asserts otherwise.  Neither the Veteran nor his attorney assert that there is an earlier communication as to this claim.
It appears that the Veteran asserts entitlement to an effective earlier than May 12, 2008, for the grant of a TDIU, as he specifically seeks an effective date of May 12, 2007, on the basis that the effective date of an award of increased compensation may be assigned up to one year prior to the date of claim, if an ascertainable increase in disability is established during that period.  Hazan, 10 Vet. App. 51.
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.  See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a); 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); see also 38 C.F.R. § 4.19 (unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating).  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). 
Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 4.15.  While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability.  Id. 
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.
Certain percentage requirements must be satisfied in order 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.  See 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.  By the Board’s decision herein, his service-connected PTSD with major depressive disorder, the sole disorder resulting in claimed unemployability, is rated as 70 percent disabling since May 12, 2007.  As such, the Veteran has met the schedular criteria for a TDIU since May 12, 20017.  38 C.F.R. § 4.16 (a). 
The Board has reviewed the evidence of record dated since May 12, 2007, through April 17, 2014, the date the Veteran was granted a TDIU.  On VA examination in January 2009, the Veteran reported that he was currently unemployed, that his last steady job was as a rancher, however, his employer went bankrupt and while attempted to ranch for himself on his own land, a storm and drought made such impossible.  The Veteran reported that his symptoms impacted his work performance minimally, as long as he is not frustrated, and that he was able to perform work duties without difficulty, although he sometimes smashed objects when building things and he missed 30 or 40 days of week each year.  He reported that he sometimes became angry with his boss, and was once told to take off a month of work when he was working at the VA in Virginia, as he had threatened to kill his bosses after being reprimanded, although review of the Veteran’s work history indicates that the Veteran worked at the VA in Virginia in the 1990s, years prior to the current appellate period.  The examiner reported that the Veteran’s symptoms appeared to be moderately impacting his functioning, and that he was able to maintain his activities of daily living, including personal hygiene, and that he had an occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks.
Based on the VA examiner’s opinion, on VA examination in April 2014, that the Veteran’s suicidal ideation would worsen if he were to try to manage the requirements of full-time employment and concluded that the Veteran would not be able to manage the duties associated with full-time employability at this time given his disability, the RO sought an opinion from another VA examiner as to whether the Veteran could be employed in a loosely supervised environment with little contact with others, and if the symptoms found on VA examination in April 2014 impacting the Veteran’s employability were in place at the time of the January 2009 VA examination.  
The examiner, in an October 2015 opinion, reported that the Veteran’s January 2009 VA examination indicates that there was a minimal impact on work performance, although the Veteran reported missing 30 or 40 days each year due to his symptoms.  The examiner noted that while the Veteran reported that he had to take a month off from work at the VA in Virginia after threatening to kill his bosses after a reprimand, such was remote employment, as the Veteran worked at the VA in Virginia in the 1990s, years prior.  The examiner reported that the January 2009 VA examination indicates that a snow storm several years ago caused monetary damage to the Veteran’s farmland and then a drought devastated his crops, thus his low income and unemployment were associated with environmental factors impacting his farming vocation and not PTSD.  The examiner reported that the Veteran’s symptoms were fairly stable from 2008 to 2009, and that he had heightened stress associated with marital problems.  The examiner reported that the January 2009 VA examination indicated significant nightmares, intrusive thoughts, flashbacks, hypervigilance, and occasional suicidal ideation, without any significant decompensations, delusions, hallucinations, thought disorders, hospitalizations, suicide attempts, or physical aggression; and that he presented with adequate hygiene despite a report of going a month without showering or shaving.  He had no other treatment notes indicating a problem with activities of daily living, he was able to attend his grandchildren’s programs and take computer classes at the library.  The examiner reported that the overall record reflects a stable course and a moderate level of symptoms during the time of the January 2009 VA examination, with good response to medications, and that the Veteran’s symptoms would have likely produced a moderately limited level of productivity, sustained focus and ability to interact appropriately with others, ability to function in crowded settings, and ability to tolerate frustrations that arose, but would not have rendered the Veteran unable to manage employment in a loosely supervised environment with little or no interaction with the public.
In an April 2017 evaluation, a private vocational consultant opined that the records in the claims file are overwhelmingly consistent with an individual who is disabled and unable to secure and follow substantial gainful employment as a result of his service-connected disability and the combinations of his limitations.  She reported that she found the Veteran to be a credible reporter of his symptoms based on the consistency between his statements during her interview and the clinical records reviewed.  She concluded that, based on all of the evidence, lay and clinical, the Veteran was unable to maintain substantially gainful employment from May 12, 2007, to April 17, 2014, due to his service-connected PTSD with major depressive disorder.  She cited multiple instances of treatment and examination from the record, his January 2008 instance of presenting with thought processes that “were off” with impaired employment functioning, and his January 2010 angry outbursts and personal hygiene issues, his January 2011 poor judgment and angry outbursts, his confrontation with others in March 2012, and having “crazy thoughts” in May 2012.  She discussed the February 2017 affidavits of the Veteran and his spouse, noting their report that the Veteran had worsening paranoia, panic attacks, and memory loss, since at least 2007, with anger that consistently gets him into trouble and difficulty maintaining effective work relationships, in that he often became angry at work and was sent home, and he was irritated by strangers in public.  She reasoned that the functional impacts of the Veteran’s symptoms are incongruent with competitive employment, in a competitive employment setting, as the individual must be able to interact appropriately with coworkers and supervisors, and the Veteran is unable to maintain appropriate interaction and relationships with others in a workplace setting, as is reflected in his work history and documented in his clinical records.  She reported that the Veteran’s symptoms include intrusive thoughts, flashbacks, and the inability to concentrate, and these symptoms would prevent him from sustaining the focus and attention required of competitive employment.  
She also cited that the Veteran’s anxiety attacks rendered him “out of service” for days at a time and would result in absences above the average employer tolerance.  She noted the basic requirements for maintaining substantially gainful employment, including sustaining focus and attention for at least two hours at a time, attending to work tasks and remaining free from distraction or interruption from coworkers, refraining from unscheduled breaks, attending work on a regular schedule, the maximum allowable tolerance from many employers being one day per month, refraining from engaging in outbursts or arguments, producing a certain, minimal amount of work while on the job; and opined that the Veteran’s symptoms eliminate his ability to maintain employment regardless of the level of physical demands and there are no unskilled jobs that are performed in isolation.  She discussed that the Veteran has a history of farming since 2007, however, such is not substantial gainful employment, as it was on a part-time basis and done when the mental health of the Veteran allowed, and was not profitable, more closely aligning with hobby farming and not competitive employment farming.
Greater weight may be placed on one physician’s opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993).
In this case, both the October 2015 VA opinion and the April 2017 private opinion were based on review of the pertinent evidence of record, including the Veteran’s lay statements, and explained the basis for their opinions.  The Board finds no basis upon which the lessen the probative value of either opinion.  Thus, the evidence is in relative equipoise, there is an approximate balance of positive and negative evidence as to the whether the Veteran was unemployable due to his service-connected PTSD with major depressive disorder prior to April 17, 2014, specifically, as of May 12, 2007, in the year prior to his May 12, 2008, claim of entitlement to a TDIU.  

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As such, it is ascertainable that an increase in disability such that the Veteran was unemployable had occurred in the year prior to the Veteran’s claim of entitlement to a TDIU; an effective date of May 12, 2007, one year prior to the Veteran’s May 12, 2008, claim of entitlement to a TDIU, but not earlier, for the grant of a TDIU, is granted.  38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400 (o).  The Veteran is entitled to the benefit of the doubt and the claim is granted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 55.  

 
P.M. DILORENZO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Purdum 

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