POSTTRAUMATIC STRESS DISORDER (PTSD)

MARY E. RUDE · 2025 · Case ID: 25003041

MIXED

Summary

The veteran, who served from August 1969 to February 1972, appeals the denial of increased ratings for his service-connected PTSD with major depression and polysubstance abuse, and seeks entitlement to a Total Disability based on Individual Unemployability (TDIU). The Board denied increased ratings for both periods under review (prior to August 29, 2024, and from August 29, 2024, onward). For the period prior to August 29, 2024, the Board found the evidence did not support an increased rating beyond 50 percent, noting the veteran maintained relationships, hobbies, and had generally intact memory and hygiene, despite experiencing depression, anxiety, and sleep impairment. The VA examiner's opinion, which found occupational impairment with occasional decreases in work efficiency, was deemed adequate and probative. For the period from August 29, 2024, the Board found the veteran's PTSD, while causing occupational impairment requiring accommodations, did not rise to the level of total occupational and social impairment needed for a 100 percent rating. The Board acknowledged the veteran's sleep impairment, fatigue, and concentration issues but found no evidence of hallucinations, delusions, or inability to manage daily living. However, the Board granted entitlement to TDIU, finding that affording the veteran the benefit of the doubt, the evidence indicated it was as likely as not that his service-connected disabilities (PTSD, OSA, PFB, ED, hypothyroidism) prevented him from obtaining or maintaining gainful employment. The Board considered the medical evidence, including VA examinations and treatment records, which detailed significant occupational impairment due to PTSD and OSA, and concluded that these combined disabilities prevented gainful employment.

Rationale

Weight of evidence against higher rating prior to Aug 29, 2024; VA exam found occupational impairment with reduced reliability; No evidence of suicidal ideation, hallucinations, or inability to perform daily living tasks

Special Benefit

TDIU

Diagnostic Code

9411

Docket No.

20-09 031

Full Decision Text

Citation Nr: 25003041
Decision Date: 03/04/25 Archive Date: 03/04/25

DOCKET NO. 20-09 031
DATE: March 4, 2025

ORDER

Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with major depression and polysubstance abuse, prior to August 29, 2024, is denied.

Entitlement to an increased rating in excess of 70 percent for PTSD with major depression and polysubstance abuse, from August 29, 2024, is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) is granted.

FINDINGS OF FACT

1. Prior to August 29, 2024, the Veteran's PTSD with major depression and polysubstance abuse has been productive of occupational and social impairment with reduced reliability and productivity. It did not cause occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

2. From August 29, 2024, the Veteran's PTSD with major depression and polysubstance abuse did not manifest by symptoms productive of total occupational and social impairment.

3. Affording the Veteran the benefit of the doubt, from January 22, 2018 to the present, his service-connected disabilities prevent him from obtaining and retaining substantially gainful employment consistent with his educational background and work experience.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 50 percent for PTSD with major depression and polysubstance abuse, prior to August 29, 2024, have not been met. 38 U.S.C. §§1155, 5107; 38 C.F.R. §§4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411.

2. The criteria for a rating in excess of 70 percent for PTSD with major depression and polysubstance abuse, from August 29, 2024, have not been met. 38 U.S.C. §§1155, 5107; 38 C.F.R. §§4.1, 4.3, 4.7, 4.126, 4.130, DC 9411.

3. The criteria for the award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from August 1969 to February 1972.

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Under 38 C.F.R. § 4.130, DC 9411, a 100 percent rating is assigned in cases of PTSD for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively;
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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

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

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

Under 38?C.F.R. §?4.126(a), an evaluation of a mental disorder 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.? The assigned rating should be 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.? While the evaluation should consider the extent of social impairment, a rating should not be assigned based solely on social impairment.? 38?C.F.R. §?4.126(b).? The list of symptoms within the criteria is not exhaustive, so the impact of other symptoms particular to a veteran or a disorder on occupational and social functioning should also be considered.?Mauerhan v. Principi, 16?Vet. App.?436 (2002).??

PTSD prior to August 29, 2024

The current appeal stems from a request for a TDIU submitted by the Veteran on January 22, 2018. He has appealed the ratings assigned for his service-connected PTSD with major depression and polysubstance abuse since that date. The Veteran has been assigned a 50 percent rating for his PTSD for the period on appeal prior to August 29, 2024, and 70 percent for the period thereafter. As will be discussed in detail below, the Board finds that an increased rating for either period is not warranted. 38 C.F.R. §§ 4.7, 4.130, DC 9411.

For the earlier period, prior to August 29, 2024, the Board finds that the weight of the evidence is against finding that the Veteran had occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, and a rating higher than 50 percent is not warranted.

During this period, the Veteran underwent a VA psychiatric evaluation in March 2018. The VA examiner, a psychologist, found that the Veteran's PTSD was characterized by symptoms to include depression, anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. During the examination, the Veteran's subjective complaints revolved around sleep impairment and depressed moods; however, noted that such might be the result of his sleep apnea (which was not service-connected at that time). The VA examiner also noted a history of drug/alcohol problems, but such was noted to be in remission at the time of the examination.

During the examination/interview, the Veteran was noted be appropriately dressed and groomed, oriented, calm, and cooperative, with some depressed moods and irritability. The Veteran reported that he was dating, and had a "close" relationship with his adult children, and grandchildren. The Veteran also reported having hobbies and participated in social events such as talent shows. No suicidal ideations and/or thoughts were noted.

The examiner, after a noted review of the Veteran's claims file and medical history, ultimately found that such symptoms were productive only of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but with, overall, "good work performance and reliability in his [then] current full time employment."

The Board finds that the VA examination is adequate for appellate review. There is no evidence that the examiner was not
, with some depressed moods and irritability. The Veteran reported that he was dating, and had a "close" relationship with his adult children, and grandchildren. The Veteran also reported having hobbies and participated in social events such as talent shows. No suicidal ideations and/or thoughts were noted.

The Board finds that the VA examination is adequate for appellate review. There is no evidence that the examiner was not competent or credible, and as the report is based on the Veteran's statements, in-person examination and the examiner's observations, the Board affords it significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008).

A review of the Veteran's VA treatment records show that he has attended continuous treatment and counseling, reporting symptoms that primarily are consistent with the findings of the VA examiner and his assessment of the severity of the Veteran's PTSD. Such records reveal no evidence of greater impairment that would indicate that a higher rating of 70 percent for this period is warranted. They do not show any suicidal or homicidal ideations, or an inability to function independently, to include complete the tasks of daily living, and/or maintain his person hygiene. Treatment records have never noted that Veteran to be inadequately dressed or groomed, he has always been noted to be oriented and cooperative, and he ostensibly showed no signed of any impairment in thinking, judgment, or mood.

The Board finds that the weight of the probative evidence is against an evaluation above 50 percent for the period on appeal. The medical evidence of record does not support the conclusion that the Veteran's overall disability picture more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 70 percent disability evaluation based on occupational and social impairment with deficiencies in most areas. 38 C.F.R. §§ 4.7, 4.130, DC 9411. The competent evidence of record does not show that the Veteran experiences symptoms of, or equivalent to, 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; spatial disorientation; neglect of personal appearance and hygiene; and inability to establish and maintain effective relationships. The evidence also does not show that he has had symptoms of similar severity, frequency, or duration such that they are the equivalent of those types of symptoms.

In making such finding, the Board recognizes that the Veteran has claimed, during his Board hearing before the undersigned, that he has had some more serious symptoms, including suicidal thoughts, memory loss, and even auditory hallucinations. The Board has considered these statements in the context of the entirety of the medical evidence and the Veteran's overall disability picture, and does not find that they indicate that a higher rating is warranted for the period prior to August 29, 2024.

The Veteran stated at the May 2022 Board hearing that he has had thoughts of suicide, although he had never tried to do anything to harm himself. The Board acknowledges that the Veteran is competent to report of his own symptoms as he has experienced them, and he is the person in the best position to say whether he has ever thought about suicide or not. However, the Board finds that the evidence overall indicates that suicidal thoughts have not been a frequent issue for him or something that generally has accompanied his PTSD. A close review of the voluminous amount of VA treatment records shows no evidence of complaints and/or treatment for suicidal thoughts. The Board points out that such records include not only general medical treatment notes, but also notes from psychiatric evaluations, as well as group and individual counselling sessions, throughout the entire claims period. At no point does the record show any complaint from the Veteran of issues with suicidal thoughts or ideations during the claims period, nor has he ever been found to be a danger to himself or others.

During the entire period prior to August 29, 2024, to include the period immediate before and after his January 2022 Board hearing, the Veteran has explicitly denied having suicidal thoughts and/or ideations during the course of treatments and counseling. An extensive review of the VA treatment records to the period until 2024, to include suicide screenings, which explicitly inquired about thoughts of suicide, was always found to be negative, in which the Veteran was noted to explicitly deny any thoughts of suicide. Contemporaneous counselling sessions during the claims period also show no evidence of the Veteran reporting any instances in which he
thoughts or ideations during the claims period, nor has he ever been found to be a danger to himself or others.

The Board acknowledges that the Court of Appeals for Veterans Claims has held that in certain cases, the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). In this case, while the Veteran has, on one occasion, reported having some suicidal thoughts with no intent or plan, the Board does not find that this symptom is of sufficient severity to warrant a higher 70 percent rating. The Veteran has expressed passive thoughts about death or suicide, but there is no indication that it has interfered with his social or occupational functioning in any way. The Board therefore acknowledges the seriousness of this symptom, but does not find that is indicates that a higher rating should be assigned.

The Veteran also testified in January 2022 that he had hallucinations which he ascribed to his PTSD. While hallucinations can be a very serious symptom, and "persistent" hallucinations are listed as one of the symptoms associated with a 100 percent rating, in this case, the Board finds that the weight of the probative medical evidence is against finding that the Veteran has hallucination symptoms which would cause occupational or social impairment.

The Veteran's VA treatment records show that these hallucinations are hypnogogic hallucinations which occur in conjunction with waking up. In May 2017, he reported a new onset of auditory hallucinations over the past few weeks, but in June 2017, he reported that his auditory hallucinations had only happened one time, when he was coming out of sleep. The Veteran then reported having hypnogogic hallucinations about twice a week with sleep paralysis in May 2018, July 2018, and January 2019. In August 2018, the Veteran reported having sleep paralysis with hallucination-type sensations. He also endorsed having long-standing anxiety and depression which could exacerbate his parasomnias.

While these symptoms that the Veteran experiences upon waking up does cause him some distress, these hallucinations occur only during this period of waking up. The Veteran has not indicated that he has ever experienced hallucinations during the day, or that he has ever had any difficulty differentiating between what is real or not. He has otherwise repeatedly denied having any hallucinations or delusions, and there is no indication that he has ever had such symptoms, any psychosis, or had an altered perception of reality. The Board finds that there is no indication that such symptoms would cause occupational or social impairment, and the evidence does not show that these instances have caused deficiencies in work, school, family relations, judgment, thinking, or mood. They therefore are not of the severity, frequency, or duration that they would indicate that a rating higher than 50 percent is warranted.

The Board has also considered the Veteran's reports of having short term memory loss at the January 2022 hearing. He stated that he sometimes forgets to do things that need to be done, and that stress can also affect his memory. The Board acknowledges this serious symptom, but does not find that he has memory loss that is of such severity or frequency that it is of the type of symptom consistent with a higher 70 or 100 percent rating. The March 2018 VA examiner did not find that the Veteran had any impairment in his memory. The Veteran's VA treatment records show subjective reports of memory loss, although on numerous occasions, his treatment providers found his memory to appear intact. The Board finds that the Veteran's memory impairment is consistent with a 50 percent rating; this criteria does specifically include impairment of short and long-term memory. At no time has he ever been found to have spatial disorientation; gross impairment in thought processes; disorientation to time or place; memory loss for the names of his close relatives, his occupation, or his own name.

The Board notes that a 70 percent rating requires that the overall disability to be productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Based on the array of symptoms presented at his
of memory loss, although on numerous occasions, his treatment providers found his memory to appear intact. The Board finds that the Veteran's memory impairment is consistent with a 50 percent rating; this criteria does specifically include impairment of short and long-term memory. At no time has he ever been found to have spatial disorientation; gross impairment in thought processes; disorientation to time or place; memory loss for the names of his close relatives, his occupation, or his own name.

The Board notes that a 70 percent rating requires that the overall disability to be productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Based on the array of symptoms presented at his VA examination and treatment records, the Board does not find that such level functional impairment has been presented, even considering the Veteran's sleep disturbance, depressed mood, and anxiety. Here, there is no evidence that the Veteran psychiatric disability has caused any deficiencies in family relationships, as he continues to maintain a good relationship with his daughter and grandchildren, and was noted to be dating during his last VA examination. The Veteran has also noted to be still working and participate in hobbies and social activities.

Likewise, with regards to the Veteran's judgement, thinking, and mood, there has been no evidence that the Veteran is impaired in these areas as VA examination of record, to include the May 2018 VA examination explicitly noted that the Veteran was on time, goal oriented, has normal speech, logical, and cooperative. The Board does acknowledge that the Veteran has been dealing with substance abuse issues, but the evidence does not show that substance abuse has affected his overall ability to function during the claims period. Further, such symptoms were considered by the March 2018 VA examiner. The examiner, considering these manifestations of the Veteran's PTSD, and noting an analysis of the Veteran's medical/psychiatric history, concluded that such array of symptoms were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. As the examiner possesses the medical expertise to evaluate the severity of the Veteran's psychiatric disability, and as the report demonstrates not only an in-person interview of the Veteran, but also a review of the Veteran's medical history, the Board finds that this evaluation does represent a highly probative assessment of the severity of the Veteran's symptoms, and this finding is consistent with the Board's review of the other medical evidence of record.

The Board therefore finds that the evidence shows that the Veteran's overall disability picture, for this period prior to August 29, 2024, shows symptoms that are not more severe than those that cause occupational and social impairment with reduced reliability and productivity. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. The Board finds that the Veteran's overall picture more nearly approximates that of a 50 percent disability rating, and his symptoms do not more nearly reflect the frequency, severity, and duration of symptoms associated with the 70 percent rating. A rating in excess of 50 percent prior to August 29, 2024 is not warranted.

PTSD from August 29, 2024

In a November 2024 rating decision, the Veteran's evaluation for PTSD was increased to 70 percent, effective August 29, 2024.

Regarding the period from August 29, 2024, the Board finds that the medical evidence of record shows that the Veteran's PTSD has not been productive of total occupational and social impairment, and an increased rating for this stage is not warranted.

The Veteran was afforded a VA psychiatric examination on August 29, 2024. In the August 2024 VA psychiatric examination report, the examiner reported that the Veteran's exhibited symptoms included depressed mood, anxiety, sleep impairment, impaired judgment, disturbance in motivation and mood, difficulty adapting to stressful circumstances, and inability to establish and maintain effective relationships. Observations of the Veteran's overall behavior during the psychiatric assessment was noted to be normal, noting that "there was nothing about their appearance, presentation or engagement that was inappropriate or remarkable." While during the examination the Veteran did acknowledge drinking prior to the examination/interview, the examiner commented that the Veteran was casually dressed, engaging, receptive, and met the expected level of decorum.

During the examination, the Veteran reported that he had previous been in a 12-year relationship which ended recently, however, still maintained relationship with his family (to include his children and grandchildren). The Veteran also noted that he occasionally went to the bar to hang out with a couple of friends. The Veteran also reported substance and alcohol use, including cocaine use and a conviction for driving while intoxicated within a year of the examination. He also reported that he was currently in therapy and a substance abuse program,
engagement that was inappropriate or remarkable." While during the examination the Veteran did acknowledge drinking prior to the examination/interview, the examiner commented that the Veteran was casually dressed, engaging, receptive, and met the expected level of decorum.

With regards to occupational impairment, the VA examiner expressly found that the Veteran would have a hard time obtaining or maintaining gainful employment without various accommodations from the employer. In a comprehensive analysis the VA examiner noted that the Veteran's PTSD symptoms alone affected his ability to maintain concentration, to include having intrusive thoughts that interfered with his ability to focus or stay on task, difficulty remembering complex instructions and/or details, functioning around other people. In addition, the examiner noted that the Veterans sleep impairment would cause significant daytime fatigue and/or ability to sustain energy and motivation to complete assigned works. Therefore, any work would need to provide reasonable accommodations which would allow "modifying break schedules, flexible scheduling, regularly scheduled supervision/feedback, written instructions and requests/checklists, allowing for phone calls to a support person during the work day, and organizational tools."

The Veteran was ultimately provided an Axis I diagnosis of PTSD. Based on the examination and review of the claims file, the examiner determined that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood.

In addition to the VA examination report, Board notes that there is an ample amount of VA medical treatment records regarding the Veteran's psychiatric treatment. A review of such treatment records reveals no evidence of additional or more severe symptoms related to his PTSD that were not outlined and/or considered by the VA examiner. Generally, during such treatments, the Veteran has never been noted to be incoherent, disoriented, uncooperative, or violent. To this end, at no point during the claims period has the Veteran noted any indication of hallucinations or delusions; or has been found to be a danger to himself or others. Consequently, the Board finds that the VA examination of record to be highly probative in establishing the severity of the Veteran's PTSD disability; and as the most persuasive evidence is against the Veteran's claim, an increased rating in excess of 70 percent is not warranted.

As noted above, a higher, 100 percent rating required functional impairment productive of total occupational and social impairment. 38 C.F.R. § 4.130, Diagnostic Code 9411. Such disability picture contemplates symptoms akin to gross impairment in thought processes/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, or memory loss for names of close relatives, own occupation, or own name. Id.

The evidence does not show that the Veteran exemplifies any of these symptoms contemplated by the higher, maximum, rating for the staged period from August 29, 2024. Indeed, the evidence shows, as exemplified by his August 2024 VA examination, that the Veteran's PTSD was manifested by depressed mood, anxiety, sleep impairment, memory loss, disturbance in motivation and mood, inability to handle stressful situations, and inability to form relationships. However, the Veteran has never been noted to be disoriented, inappropriately dressed, with inadequate hygiene, and/or uncooperative during any examinations and/or treatments. There has been no reports of delusions or hallucinations reported by the Veteran or noted on examination/treatment, during this period. Likewise, the VA examiner and treating professionals have not noted that the Veteran was a danger to himself or other, with no reported incidents of violence, or a loss of control. Finally, there has been no evidence that the Veteran has ever demonstrated that he was unable to take care of himself, or his daily chores.

The Board also finds that, while the Veteran's condition may be productive of producing significant occupational impairment, as to require accommodations, his symptoms have not caused social impairment, as the Veteran has continued to maintain social and familial relationship, to include attending social events at bars with friends. There is no other evidence indicating that the Veteran has had social impairment to such an extent that he has had total social impairment, which is required for a higher rating of 100 percent.

The Board concludes that the weight of the probative evidence is against a
or other, with no reported incidents of violence, or a loss of control. Finally, there has been no evidence that the Veteran has ever demonstrated that he was unable to take care of himself, or his daily chores.

The Board concludes that the weight of the probative evidence is against a finding that the Veteran's PTSD has manifested by symptoms warranting a 100 percent evaluation, as the evidence does not show functional impairment comparable to total occupational and social impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9411; Vazquez-Claudio, 713 F.3d at 116-17. Here, the evidence shows that the Veteran does not experience any of the symptoms listed for a 100 percent rating, or other symptoms of a similar severity, frequency, or duration, but rather that his symptoms are all fully contemplated by the rating criteria for a 70 percent or lower disability rating. At no time has the Veteran ever been found to manifest symptoms of such great severity that they cause total social and occupational impairment.

The Board concludes that for the period from August 29, 2024, Veteran's PTSD symptoms do not more nearly approximate a 100 percent rating. Accordingly, entitlement to a rating greater than 70 percent for PTSD from August 29, 2024 is denied.

The evidence persuasively favors against the assignment of any higher ratings, and the benefit-of-the-doubt rule does not apply.? See 38?U.S.C. §?5107(b), Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).?

TDIU

The Veteran has requested entitlement to a TDIU. The Veteran has asserted and testified that his service-connected disabilities have greatly impaired his ability to obtain and sustain gainful employment. To this end, the Veteran has noted that he worked in housekeeping at the VA until his retirement in 2018. He noted that his service-connected disabilities, namely his sleep apnea (OSA) and PTSD, affected his ability to perform during the day due to fatigue and work with other; and as such, a TDIU is warranted due to his service-connected disabilities.

The Board has reviewed all of the evidence and finds that affording the Veteran the benefit of the doubt, there is probative evidence indicating that it is as likely as not that he is unable to obtain or maintain gainful employment due to his service-connected disabilities, and entitlement to a TDIU is warranted.

VA may grant a TDIU when the evidence shows that a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities.? 38 C.F.R. §§ 3.340, 3.341, 4.16.

The Veteran does meet the schedular criteria for a TDIU for the entire period on appeal, which is January 22, 2018, to the present. He is currently service connected for PTSD (50 percent prior to August 29, 2024, and 70 percent, thereafter); OSA (50 percent); PFB (10 percent); erectile dysfunction (0 percent); and hypothyroidism (0 percent). The Veteran has had a combined total evaluation of 80 percent, prior to August 29, 2024, and a 90 percent thereafter, with at least one (PTSD) disability rated at least 50 percent. He therefore meets the criteria to be eligible for a schedular TDIU under 38 C.F.R. §4.16(a).

There is also adequate medical evidence which establishes that the Veteran's respiratory (OSA) and psychiatric symptoms, in combination, significantly impair his occupational functioning such that he is as likely as not unable to obtain or maintain employment.

The Veteran was afforded a VA examination in August 2024 for both his PTSD, as well as his more recently service-connected OSA. In the PTSD examination, as noted above, the VA examiner explicitly remarked on the Veteran's occupational impairment caused by his PTSD. In this regard, the VA examiner expressly found that the Veteran's would have a hard time obtaining or maintaining gainful employment without various accommodations from the employer. The analysis noted that the Veteran's PTSD symptoms alone affected the Veteran's ability to maintain concentration, to include having intrusive thoughts that interfered with his ability to focus or stay on task, difficulty remembering complex instructions and/or details, functioning around other people. In addition, the examiner noted that the Veterans sleep impairment would cause significant daytime fatigue and/or ability to sustain energy and motivation to complete assigned works. Therefore, any work would need to provide reasonable accommodations which would allow "modifying break schedules, flexible scheduling, regularly scheduled supervision/feedback, written instructions and requests/checklists, allowing for phone calls to a support person during the work day, and organizational tools." To this end, the examiner noted that the Veteran has reported, his condition caused him increased absenteeism, and eventually resulted in him retiring.

The Board notes that such was further affirmed by his VA examination for OSA. The examination report noted that the Veteran's OSA prevented him from adequate sleep at night, and that application of the CPAP machine to alleviate symptoms of OSA did not work for the Veteran's condition. As such, his condition caused him chronic difficulty to go to sleep and stay asleep, with in turn resulted in frequent daytime somnolence and interferes with activities outside the home.

The Board finds these medical examination reports and opinions to be highly probative evidence which is based on evaluations of treatment of the Veteran's service-connected conditions, and an accurate understanding of the Veteran's medical history and contentions, and it is supported by a thorough explanation of its findings. See Nieves-Rodriguez, 22 Vet. App. at 301. It is consistent with the other medical evidence of record, and it is afforded great probative weight in deciding the claim.

The Veteran's submitted claim for his TDIU, also outlines his work history and education, which include housekeep duties for the VA, and only two years of college completed, with no noted additional training and/or experience. In lay statements and reports the Veteran has asserted that his PTSD and OSA cause him significant difficulty at work, and him taking leave due to fatigue. In addition to this, the Veteran also asserted that his PTSD caused memory loss and inability to hold his concentration due to his chronic sleep disturbance.

While none of the VA examiners specifically found that the Veteran's service-connected disabilities prevented him from working, the question of employability is a legal determination for the adjudicator, and is not medical, in nature. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Here, the Board has considered the medical evidence in its entirety and finds that it shows a disability picture that includes severe impairment with sleep, daytime fatigue, lack of concentration, inability to deal with stressful circumstances, and difficulty dealing with others. The Board finds that affording the Veteran the benefit of the doubt, the evidence shows that he is not able to obtain or maintain gainful employment consistent with his education and experience.

The Board therefore finds that there is probative and persuasive evidence that the Veteran's service-connected disabilities, taken together, prevent him from being able to obtain or maintain a gainful employment consistent with his work experience and education. Entitlement to a TDIU is granted.

Mary E. Rude

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Ziheng Zhu, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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