Citation Nr: 23061922 Decision Date: 11/21/23 Archive Date: 11/21/23 DOCKET NO. 19-01 263 DATE: November 21, 2023 ORDER 1. From October 31, 2015, to December 9, 2018, an increased rating in excess of 50 percent disabling for posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) with alcohol use disorder is denied. 2. From December 10, 2018, an increased rating in excess of 70 percent disabling for PTSD and MDD with alcohol use disorder is denied. 3. From June 22, 2016, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Prior to June 22, 2016, entitlement to a TDIU is remanded. FINDINGS OF FACT 1. From October 31, 2015, to December 9, 2018, the Veteran's PTSD was productive of chronic sleep impairment, avoidance behaviors, disturbances of motivation and mood, and irritability. 2. From December 10, 2018, the Veteran's PTSD has manifested in no more than occupational and social impairment with deficiencies in most areas, including work, school, family, relationships, judgment, thinking or mood. 3. From June 22, 2016, the Veteran's service-connected disabilities precluded substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. From October 31, 2015, to December 9, 2018, the criteria for an increased rating in excess of 50 percent disabling for PTSD and MDD with alcohol use disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. From December 10, 2018, the criteria for an increased rating in excess of 70 percent disabling for PTSD and MDD with alcohol use disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, DC 9411. 3. Effective June 22, 2016, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107, 5110; 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 from December 1965 to December 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). While the claim was on appeal, the RO issued a December 2018 rating decision, granting an increased evaluation of 70 percent disabling for the Veteran's service-connected PTSD, effective December 10, 2018. The claim was last before the Board in October 2021. At that time, the Board remanded the claim for further development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. From October 31, 2015, to December 9, 2018, an increased rating in excess of 50 percent disabling for PTSD and MDD with alcohol use disorder. 2. From December 10, 2018, an increased rating in excess of 70 percent disabling for PTSD and MDD with alcohol use disorder. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When there is an approximate or nearly equal balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran and the claim will be granted on the merits. 38 U.S.C. § 5107(b). When the evidence persuasively favors against the claim of the Veteran, the benefit of the doubt doctrine is inapplicable and the claim will be denied on its merits. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc). The Veteran's service-connected psychiatric disability is currently evaluated as 50 percent from July 29, 2011, and 70 percent from December 10, 2018, under DC 9411. Under the provisions of 38 C.F.R. § 4.130, the General Rating Formula for Mental Disorders is used to determine disability ratings. Under DC 9411, a 50 percent rating is assigned when symptoms are present, such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms are present, such as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (to include unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (to include work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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 of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms (or their effects) that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite level of occupational and social impairment. Analysis The issue on appeal is whether the Veteran's associated symptoms cause the level of impairment required for a PTSD rating in excess of 50 percent from October 31, 2015, to December 9, 2018, and in excess of 70 percent thereafter. The rating period begins from October 31, 2015, including the one-year "look back period" after receipt of the Veteran's claim for increased rating on October 31, 2016. The Board has thoroughly reviewed the lay and medical evidence of record, and in consideration of such when conducting a holistic analysis, the Board finds that from October 31, 2015, the Veteran's psychiatric symptoms were productive of occupational and social impairment with reduced reliability and productivity. Additionally, from December 9, 2018, the Veteran's psychiatric symptoms were productive of occupational and social impairment with deficiencies in most areas.? Private medical records from July 2016 provide the Veteran takes medication for his alcohol use and depression, attends groups therapy and individual one-on-one sessions for the past 14 months for PTSD. He reported an increase in the occurrence of nightmares and intrusive thoughts about his time in Vietnam and that his relationship with his spouse is verbally abusive and emotionally combative. However, he noted that it has improved somewhat since his participation in group therapy. He averaged about four to five hours of sleep per night, experienced nightmares on an average of once per week where he wakes up in panic and cold sweats and his wife wakes him. He was also prescribed medication to assist with sleep and depression. The examiner also noted that in the past two decades, the Veteran has worked temporary jobs, including as a photographer. He liked to work alone and at his own pace. He has been semi-retired for the last two years. At the time of the examination, he sponsored trips to Ireland up to four times a year. This allowed him, as a director for tourists' safety, to feel he is still "on patrol." He was obsessed with physical fitness, spending a lot of time in his home gym, jogging, and playing tennis twice a week. He also recorded his drinking in a log and noted he was considering in-house treatment through VA for alcohol abuse. The Veteran's private psychologist provided the following assessment: The Veteran suffers from alcoholism, is chronically depressed, and suffers from anxious disorder as well as habitual behavior of obsessive compulsive disorder. He is alone and isolated. He lacks social skills necessary to effectively interact with family and friends, is unable to establish intimate relationships with anyone, and has flattened emotions. Medical records include an August 2016 note that the Veteran stopped taking Naltrexone about 10 days after the start of the trial because he did not notice significant benefit, though he felt lethargic. He continued in addiction counseling and was making progress, reflected in an increased number of alcohol free days. The Veteran reported his wife noted his improved mood when he took Sertraline, that he was less irritable and "not as combative." He also continued to find individual and group therapy helpful, though he noted increased upsetting memories from Vietnam. He noted occasionally waking up sweating and his wife told him that he acted out his dreams, including hitting her in his sleep once. The Veteran endorsed hypervigilance; however, he is not disturbed by it and does not want to change it about himself. He also described being more distant than he would like to be from some people. He also endorsed having high energy, continuing to play tennis, and being intimate with his wife. An additional September 2016 mental health outpatient note provided the Veteran was not acutely suicidal. Medical records from October 2016 provide the Veteran continued to play tennis, that he enjoyed trips out of the country, and that he slept up to seven hours per night. Though he did not recall nightmares, he did have poor concentration. He also denied hopelessness and suicidal/homicidal ideation, plan, or intent. The Veteran was afforded a VA examination in December 2016. During the examination, the Veteran expressed that he has not been working but that he has been keeping busy daily including exercising. The Veteran expressed that his mood continued to fluctuate and his irritability had been impacting his relationships with his family members. However, he noted some improvement with the use of Sertraline. The Veteran stated he has been married to his wife for over 40 years and that she is very supportive of him. He reported that she encourages him to stop drinking, which he was struggling to do by reducing his daily intake. The Veteran also expressed that at night he tends to have significant problems with distressing recollections about Vietnam which impacts his ability to fall asleep. As such, at night, he generally drinks alcohol mostly to help feel calm and to assist with falling asleep. He did not report suicidal ideations, plans, or intentions. As a result of the Veteran's feedback during the examination, the VA examiner found the Veteran's psychiatric symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Private medical records from June 2017 provide the Veteran stopped taking his prescribed medication because he did not think was working as it was giving him a headache. Additionally, he attended PTSD meetings once a week since early 2015. He also mentioned trying to have a good relationship with his children and that they love him. However, he noted that he cannot go anywhere in public with his family unless he dictates where they sit (which irritates his children). He also marks down every day that he does not drink and takes pills to control his anxiety and anger. However, he described the times he is most at peace are when he is attending the PTSD meetings and when he is alone. He also described just going off by himself for a few days, just to be alone. He also described sponsoring overseas trips to Europe part-time and he serving as a tour guide. He said he did not have many friends due to his inability to trust people. May 2018 medical records provide the Veteran enjoys Florida, but likes to come home to see his family and friends. He reported that the only friends he has are other veterans. In March 2018, the Veteran was provided a VA examination for PTSD review. It was noted that he has significant difficulty accepting supervision or receiving instructions without becoming angry. In October 2018, medical records describe the Veteran playing tennis three times a week. Additional medical records from November 2018 provide that in the winter, the Veteran lives in the Florida Keys and then he goes to Europe in April. A December 2018 PTSD Disability Benefits Questionnaire (DBQ) provided the Veteran's psychiatric symptoms included: depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; impairment of short and long-term memory, for example retention of only highly learned material, while forgetting to complete tasks; flattened affect; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; impaired judgment; impaired abstract thinking; gross impairment in thought processes or communication; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficult adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; grossly inappropriate behavior; persistent danger of hurting self or others; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. It was specifically noted that the Veteran struggles with unprovoked irritability, which leads to anger and outbursts. A December 2018 VA examination was provided. During the examination, the Veteran noted that he thought he had good relationships with his grandchildren, but his five-year-old granddaughter told him, "I am not supposed to be in the room when there is only you here." He stated that she told him that her mother told her that he was dangerous. He did not tell his son that this happened. He reported that he enjoys time with his grandchildren, but notes that his relationships with his son and daughter "have a history of being distant." The Veteran has four sisters and noted that "they don't hate [him]." He reported having contact with them around the holidays and maybe once in the summer. Additionally, he reported that they mostly communicate with his wife. He stated that these relationships are unchanged. The Veteran stated that he has friends now because he goes to PTSD meetings with veterans and is friendly with them, occasionally going to lunch with them after the meeting. He stated that he communicates by text with two of these veterans, but does not speak to them much outside of their meetings. He also has one military friend with whom he speaks around the holidays. Further, the Veteran noted that his wife seems to think he has trouble maintaining his personal hygiene, noting that "she makes [him] take a shower." He noted that he called the VA Crisis Hotline a year or so ago when he got angry while driving. He stated that he chased someone on the road, banged on his window, and then followed the car to a bar. He stated that he knew it was stupid, so he called the hotline and talked it through. Additionally, the Veteran reported having thoughts of hurting himself in the past, about a year or nine months ago. He also reported poor concentration, which impacts his ability to read and to play tennis. His energy level was fine, but he has days when he cannot get out of bed; this occurs a few times a month "until [his] wife drags [him] out." He described experiencing frequent worry and noted that his hands shake. He reported that he feels restless and has anxiety attacks. The examiner found the Veteran's psychiatric diagnosis included the following symptoms: depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; impaired impulse control, such as unprovoked irritability with periods of violence; and, neglect of personal appearance and hygiene. As a result, the examiner found the Veteran's psychiatric symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. An October 2022 PTSD DBQ noted the Veteran has a non-existent social life; however, he has a few social contacts and socially isolates himself. He is also married. The Veteran has severe survivor guilt. When he came home, he refused to tell anyone he served in the military and certainly not that he was in Vietnam. This shame led to a solitary work history and social impairments throughout his life. His psychiatric condition included the following symptoms: depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; impairment of short and long term memory (e.g., retention of only highly learned material, while forgetting to complete tasks); flattened affect; circumstantial, circumlocutory or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; difficulty in understanding complex commands; impaired judgment; gross impairment in thought processes or communication; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or work-like settings; inability to establish and maintain effective relationships; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; grossly inappropriate behavior; persistent danger of hurting self or others; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene.? Private medical records from May 2023 include an interview with the Veteran, in which he described struggling with anger, irritability, and difficulty getting along with others. He mentioned attending 3 PTSD meetings during the week, which are helpful. He noted struggling with concentration and memory, which was observed during the interview multiple times when he lost his train of thought. He also repeated himself and did not remember part of the conversation after a few minutes. The interviewer noted the Veteran has anxiety and difficulty sleeping, only getting between four to five hours of sleep on average each night. He also has debilitating head pain almost every day. Evidence of record also includes October 2016 statements from the Veteran and his wife. The Veteran reported having a fight once per year, though he regrets it. He also mentioned not having any friends (only acquaintances) as he does not see the need for them. He described always sitting in a corner or against a wall in a bar, restaurant, or any public place he has to be, so we can see every face and check the perimeter. He described himself as never depressed and mentioned that he never contemplates suicide, though he sometimes thinks others should be harmed for their sins and regrets he cannot harm them. In her statement, the Veteran's wife described him as having increased anger, aggressive behavior including screaming and cursing, paranoid behavior, and not having real friends (expect for his four sisters), though he is friendly with another Marines. She said the Veteran was anxious in crowds and can be verbally abusive and mentally cruel to her. Collectively, the above-described evidence reflects that, pertinent to the claim on appeal, the Veteran's psychiatric symptoms prior to December 9, 2018, included anxiety, depressed mood, lack of motivation, recurring thoughts and/or nightmares, avoidance, chronic sleep disturbance, and impulse control resulting in offensive and/or aggressive behavior, for which the Veteran is remorseful. Recognizing that the symptoms listed in the rating criteria are non-exhaustive, the Board finds that, in assessing the severity, frequency, and duration of the signs and symptoms of his PTSD, the Veteran's PTSD more nearly approximates the level of impairment contemplated in the 50 percent rating from October 31, 2015, to December 9, 2018. In this regard, the Board finds the evidence does not show evidence of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; spatial disorientation; or an inability to perform activities of daily living. Moreover, any difficulty in adapting to stressful circumstances or inability to establish and maintain effective relationships are accounted for in the 50 percent rating. Additionally, while an increased rating to 70 percent was granted by the RO's December 2018 rating decision, effective from December 10, 2018, a further increase to 100 percent disabling for total occupational and social impairment is not warranted. The Board acknowledges the severity of the Veteran's PTSD symptoms. However, the evidence does not support that his PTSD causes total occupational and social impairment. Here, the Veteran's being married and describing his wife as supportive; his relationships with his four sisters, grandchildren, and other veterans; his regular attendance at group PTSD meetings; and his annual trips to Europe as a tour guide for others, affirmatively oppose a finding of total social impairment. Moreover, to reach a finding of total social impairment, the evidence would need to show that the Veteran did not have any close relationships. For the reasons set forth above, the evidence persuasively weighs against the Veteran's claims for an increased rating for his service-connected PTSD. The benefit of the doubt rule is therefore not for application as to this claim. 38 U.S.C. § 5107(b); Lynch, 21 F.4th at 781. The Board finds that the Veteran's impairment due to PTSD was most consistent with a 50 percent disability rating from October 31, 2015, to December 9, 2018, and with a 70 percent disability rating from December 10, 2018. ? 3. Entitlement to a TDIU from June 22, 2016. Legal Criteria A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (citing Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Analysis The Veteran is service-connected for PTSD from July 29, 2011 (50 percent) and from December 10, 2018 (70 percent); migraine, including migraine variants associated with PTSD from April 12, 2021 (50 percent); scars right lower leg and left buttock s/p debridement and grafting right left wound from July 29, 2011 (noncompensable) and from June 15, 2012 (20 percent); bilateral hearing loss from July 29, 2011 (noncompensable) and from June 22, 2016 (20 percent); and tinnitus from June 15, 2012 (10 percent). As such, the Veteran meets the schedular percentage requirement for consideration of a TDIU under 38 C.F.R. § 4.16(a) based on his service-connected PTSD, bilateral hearing loss, and tinnitus from June 22, 2016. Therefore, the remaining question is whether the Veteran was unable to secure or follow a substantially gainful occupation because of these disabilities. The Veteran's January 2019 VA Form 21-8940 shows he finished high school and completed United States Marine Corps combat training as a rifleman in 1965. His application provides that he last worked full-time in December 1995 as a machine operator. He also reported becoming too disabled to work at the same time. In his application, he noted that his service-connected PTSD and bilateral hearing loss prevented him from securing or following any substantially gainful occupation. Additionally, the Veteran reported that he was laid off in 1995. However, after being laid off, sold boats for two summers (2006 and 2007). After being fired from this job due to an argument with a customer, the Veteran made money as a self-employed photographer until around 2010. He noted having a veteran friend in Florida who owns a charter fishing boat, and he sometimes works as a mate. In his January 2019 Notice of Disagreement (NOD), the Veteran provided that his PTSD is severely debilitating and makes him incapable of getting or keeping gainful employment. He provided that while he did "piece work on occasion" for a food magazine, he was paid mostly in restaurant gift certificates. Additionally, he described his inability to focus for more than minutes at a time (e.g., it took him four days to write the NOD, which he thought should have taken only an hour). July 2016 private treatment records provide the Veteran suffers from alcoholism, is chronically depressed, and has anxiety. He lacks the social skills necessary to effectively interact with family and friends, is unable to establish intimate relationships with others; his emotions are flattened and he remains distant. Private medical records from October 2016 provide that in the past two decades, the Veteran has worked temporary jobs, including as a photographer. He likes to work alone and at his own pace. He has been semi-retired for the last two years. He sponsors trips to Ireland up to four times a year. This allows him, as a director for tourists' safety, to feel he is still "on patrol." He is obsessed with physical fitness, spending a lot of time in his home gym, jogging, and playing tennis twice a week. He records his drinking in a ledger and he is considering in-house treatment through VA for alcohol abuse. During a December 2016 VA examination, the examiner noted the Veteran has not worked since his last evaluation and reports that he last worked full-time in sales of boats in 2008. During a March 2018 DBQ on hearing loss, the examiner provided that the Veteran's hearing loss would affect his ability to function in a position requiring critical thinking in difficult listening environments. There would be no functional limitations to working in a career that does not require ongoing communication. The Veteran was also afforded a March 2018 DBQ on PTSD, which determined he has significant difficulty accepting supervision or receiving instructions without becoming angry. During the December 2018 VA examination on PTSD, as noted above, the examiner found the Veteran to have occupational and social impairment with deficiencies in most areas, including work, judgment, thinking and/or mood. In a December 2018 DBQ on PTSD, a private examiner found the Veteran had total occupational and social impairment. After evaluating the Veteran and his PTSD for the past two years, including on an individual and group basis, the private examiner concluded within a reasonable degree of professional certainty that the Veteran is unable to obtain or maintain gainful employment. The private examiner noted that this was based on his social and occupational impairments impeding his ability to work with the public or interact in any capacity in the working world. An October 2022 DBQ on PTSD noted the Veteran has not been able to work full-time since 1995. He has had sporadic and unsuccessful occupational attempts since that time and on each attempt, he failed to be able to follow the routine or meet the obligations of his job because of the increasing severity of his PTSD. Therefore, the examiner found that it is within a significant degree of professional certainty that the Veteran is unable to obtain or maintain gainful employment and is completely unemployable. Private medical records from May 2022 provide the Veteran experiences excruciatingly painful headaches on an average of twice a month, requiring him to lay down in the dark for hours. He described the headaches as occurring after having nightmares or flashbacks from his time in service. Thus, a private examiner found the headaches related to his PTSD. Evidence of record also includes a May 2023 opinion from a vocational consulting expert. After reviewing the Veteran's record, the vocational expert found the records are consistent with an individual who was disabled and more likely than not unable to secure and follow substantially gainful employment, including unskilled sedentary employment, as a result of his service-connected conditions since at least July 2011. The vocational expert noted several important characteristics for someone to sustain competitive employment at any exertional or skill level, including sedentary unskilled work: ability to sustain focus and attention for at least two hours at a time throughout the work day; ability to tend to work tasks and remain free from distraction or interruption from co-workers; ability to rend to their work and not require supervision or redirection to remain on task; ability to follow short and simple instructions and recall work tasks without reminders; ability to not take unscheduled breaks or leave the workstation, except at designated break times; ability to tend to work on a regular schedule, free from absences or tardiness; and, the ability to consistently produce a certain, minimal amount of work while on the job. For each of these, the consulting expert found the Veteran struggled as a result of his service-connected disabilities. For that reason, the Veteran was found to have less than sedentary work capacity. Utilizing a "widely accepted definition" of sedentary work from the Dictionary of Occupational Titles, the vocational consultant noted that there is no gainful employment that is less than sedentary. The evidence persuasively shows that the service-connected disabilities, particularly PTSD and bilateral hearing loss, are such that they preclude him from maintaining any regular, substantially gainful employment. The Board finds that the cumulative effect of the various disabilities is such that he would be unable to maintain regular substantially gainful employment consistent with his education and work experience as a machine operator (from which he has ceased working for at least 28 years and has not sought employment since). Though he has sought sporadic employment in other industries, such as his work as a photographer, artist, and boat salesman, all have been terminated due to his service-connected PTSD symptoms. The record provides that the only employment he currently has is as a European tourist guide several times a year. However, this is not considered regular, substantially gainful employment. Considering the foregoing, the Board finds it has been reasonably shown that the Veteran's service-connected disabilities result in limitations incompatible with any regular substantially gainful employment consistent with his education and work experience. Accordingly, the criteria for establishing a TDIU rating are met from June 22, 2016; a TDIU rating is warranted from June 22, 2016. REASONS FOR REMAND Under 38 C.F.R. § 4.16(b), where the percentage requirements of 38 C.F.R. § 4.16(a) are not met, a TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director, Compensation Service, for extraschedular consideration. In this case, the Veteran's service-connected disabilities only satisfy the schedular criteria for a TDIU from June 22, 2016. The record reflects that the Veteran last worked in December 1995. See VA Form 8940. While the Veteran worked as a photographer, boat salesman, and artist, evidence of record demonstrates that he was let go from these positions due to his irritability and angry outbursts, both symptoms of his service-connected PTSD. Therefore, evidence suggests that the Veteran's service-connected disabilities, and particularly his PTSD, have caused substantial impairment that affect his ability to obtain and maintain employment consistent with his employment and educational experience prior to June 22, 2016. However, the Board is precluded from considering in the first instance whether TDIU should be assigned on an extraschedular basis for the period prior to June 22, 2016, and therefore the issue must be referred to the Director, Compensation Service. The matter is REMANDED for the following action: Refer the matter of entitlement to TDIU prior to June 22, 2016, to the Director, Compensation Service, for a determination in the first instance as to whether the assignment of a TDIU rating is warranted on an extraschedular basis prior to June 22, 2016. S. CHARLES NEILL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Becton, Sidonie 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.