Citation Nr: 1303307 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 12-22 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a rating in excess of 30 percent for anxiety disorder. 2. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from November 1953 to September 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The evidence does not demonstrate that the anxiety disorder results in occupational and social impairment, with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 2. The Veteran is service-connected for anxiety disorder, evaluated as 30 percent disabling; lumbosacral strain with osteoarthritis, evaluated as 20 percent disabling; right knee condition, evaluated as 10 percent disabling; degenerative arthritis of the right hip, evaluated as 10 percent disabling; patellofemoral osteoarthritis of the left knee, evaluated as 10 percent disabling; and right lumbosacral radiculopathy, evaluated as 10 percent disabling. The Veteran's combined service-connected disability rating is 70 percent. 3. The Veteran completed two years of high school, has no special training and was gainfully employed for many years as a bus driver until 1984. 4. The Veteran's service-connected disabilities do not preclude all forms of substantially gainful employment consistent with his educational background and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for anxiety disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9400 (2012). 2. The criteria for an award of a TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant was must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was notified in letters dated in December 2009 (TDIU) and April 2010 (psychiatric disorder) regarding the type of evidence necessary to establish his claims. He was instructed that to show entitlement to an increased evaluation for his service-connected disability, the evidence must show that the disability has gotten worse. He was advised of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. Additionally, the letters notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, the April 2010 letter and a second letter dated in February 2012 informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Regarding VA's duty to assist, the RO obtained the Veteran's post-service medical records and also secured examinations in furtherance of his claims. Pertinent VA examinations were obtained in May 2010 (psychiatric disorder), March 2011 (both issues) and March 2012 (both issues) with a July 2012 addendum opinion. 38 C.F.R. § 3.159(c)(4). The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable diagnostic codes, and considered the full history of the disabilities. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issues adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis A. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App 505 (2007). As discussed in detail below, the Board concludes that a staged rating is not warranted. The Veteran contends that he is entitled to a rating in excess of 30 percent for the service-connected anxiety disorder due to the severity of his symptomatology. The Board observes that the Veteran's service-connected psychiatric disorder was previously characterized as an adjustment disorder with depressed mood. However, in the July 2012 Statement of the Case (SOC), the RO recharacterized the Veteran's disorder as anxiety disorder. This service-connected disability is rated as 30 percent disabling under 38 C.F.R. § 4.130, DC 9400, which evaluates impairment from generalized anxiety disorder. Specifically, pursuant to DC 9400, a 30 percent evaluation is warranted if the evidence establishes that there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9400 (2012). A 50 percent evaluation is warranted if the evidence establishes there is occupational and social impairment, with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted if the evidence establishes there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if the evidence establishes 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 oneself 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 list of symptoms in the rating formula is not intended to constitute an exhaustive list, but rather shows examples of the types and degrees of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). When evaluating a mental disorder, the rating agency shall 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 rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2012). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV). A GAF score of 51 to 60 is indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with co-workers). Based on the evidence of record, the Board concludes that a rating in excess of 30 percent is not warranted at any time during the pendency of this appeal. Throughout this appeal, the pertinent evidence record has not shown 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; impaired judgment; impaired abstract thinking; difficulty in establishing and maintaining effective work and social relationships. Although the evidence does show symptoms such as impairment of long term memory as well as disturbances of motivation and mood, the totality of the symptomatology shown throughout this appeal does not equate to occupational and social impairment with reduced reliability and productivity. In reviewing the evidence, the Board observes that in addition to his service-connected anxiety disorder, the Veteran has also been shown to have major depressive disorder due to complicated bereavement following the death of his wife and son. Although VA may compensate a veteran only for service-connected disability, the Board is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). In this case, the March 2011 and March 2012 VA examiners discussed the separate functional impairment attributed to each psychiatric disorder. Consequently, in evaluating the Veteran's anxiety disorder, the Board will address the occupational and social impairment attributable specifically to that disorder as opined by the VA examiners. A VA examination in May 2010 fails to show that the Veteran's anxiety disorder causes occupational and social impairment with reduced reliability and productivity. At that examination, the Veteran was shown to have substantial problems with remote memory involving dates, places and sequences of events. He reported substantial insomnia since his wife died 39 months ago. He had become depressed since the death of his wife. The Veteran's occupational history included retiring in 1984 after hurting his shoulder. He worked for 27 years as a bus driver. The Veteran was quite socially isolated, although he did go to the AMVETS office almost every day and spent time with fellow veterans as well as having friendly relationships with his neighbors. He had good relationships with his two sons and one daughter. However, the Veteran had become very isolated since the death of his wife given that she was the person who was responsible for initiating and maintaining a social life for them as a couple. Mental status examination revealed an anxious and depressed mood; anxious and depressed affect that was appropriate to content; normal speech; orientation times three; logical, coherent and organized thought processes; no history of hallucinations; and no delusional content. The Veteran denied any current suicidal ideation, homicidal ideation and a history of assaultive behavior. The Veteran reported that he had moderate problems with concentration. Abstract thinking, judgment, impulse control and insight all appeared to be intact. He was diagnosed with generalized anxiety disorder and bereavement. A GAF score of 60 was assigned. The examiner commented that the Veteran did have chronic problems with anxiety and nervousness, but more recently, he also experienced depression which, as per the Veteran's own report, appeared to be secondary and in response to the death of his wife. This examination fails to show that the Veteran has occupational and social impairment with reduced reliability and productivity due to his anxiety disorder. The Veteran socialized daily with fellow veterans, had friendly relationships with his neighbors and also had good relationships with his children. To the extent that the Veteran has social isolation and impairment, the Veteran indicated that it was due to the death of his wife as she was the person responsible for initiating and maintaining a social life. The symptoms shown on this examination are not akin to those listed in the rating criteria as indicative of occupational and social impairment with reduced reliability and productivity. VA treatment records in May 2010, September 2010 and February 2011 show symptomatology consistent with that shown on previous examination. In May 2010, the Veteran reported feeling anxious and depressed and also having insomnia since his wife died in February 2007. He reportedly had many good friends in September 2010. The Veteran indicated socializing with his neighbor in February 2011. The neighbor and her family invited the Veteran for meals twice a week and sometimes sent their baby sitter to help him clean the house. A VA examination in March 2011 also fails to show that the Veteran's anxiety disorder warrants a rating in excess of 30 percent. At that examination, the Veteran reported recently losing his son who was approximately 50 years old. The Veteran was still retired. He had changed psychiatrists at VA which, in the examiner's opinion, led to increased symptoms as the Veteran already had an established rapport with his prior psychiatrist. He continued to experience anxiety unchanged since his last examination. The Veteran was experiencing complicated bereavement. He was distraught over his wife's and son's passing. He lived alone and was isolative. He rarely saw his daughter and never saw his son; his children both had their own problems. The Veteran was clearly exhibiting a major depressive disorder as a direct consequence of his complicated bereavement. His depression rendered him both unable to work and unable to socialize. The Veteran's depression was seen as separate and distinct from his previous diagnosis of anxiety, which was military-related, having to do with his military career. However, his current diagnosis of complicated bereavement had led to a major depressive disorder, which in and of itself had left the Veteran incapacitated from a psychiatric vantage-point. The Veteran's anxiety condition was seen as unchanged. However, the complicated bereavement did not appear to be related to the preexisting anxiety condition. Mental status examination revealed severely depressed mood and affect; normal speech; no evidence of perceptual impairment nor any evidence of thought disorder; appropriate thought content; no suicidal and homicidal ideation; orientation to time, place and person; and impaired memory and concentration as a direct consequence of severe depression. Abstract reasoning, judgment, impulse control and insight were all intact. The Veteran was overwhelmed by the loneliness he was experiencing as a consequence of his wife's death. He appeared to be relatively reclusive and isolative; he rarely spoke to his son. His sisters had all died, but he did have two brothers with whom he remained in contact. His parents were both deceased. The Veteran denied engaging in any productive hobbies and personal interests. His current level of depression was so severe that his ability to engage in productive recreational activities was significantly compromised. The Veteran was diagnosed with anxiety and complicated bereavement leading to major depressive disorder secondary to his wife's passing. The examiner opined that the Veteran's bereavement was significant and severe and impacted dramatically on both social and occupational functioning. The GAF score assigned to his generalized anxiety was 58 while a score of 40 was assigned to his complicated bereavement with associated major depressive disorder. The examiner opined that the complicated bereavement with major depressive disorder caused total occupation and social impairment. As regards his service-connected anxiety disorder, the Veteran demonstrated occasional decreases in work efficiency and occasional inability to socialize. Thus, the occupational and social impairment shown at the March 2011 VA examination does not equate to reduced reliability and productivity. The examiner did not opine that such impairment was shown. Rather, the significant occupational and social impairment demonstrated at this examination was opined to be due to a nonservice-connected complicated bereavement with major depressive disorder. The severe symptomatology shown in March 2011 causing the Veteran to be socially isolative and reclusive was attributed to his nonservice-connected psychiatric disorder. The actual symptoms shown on this examination that are directly attributable to his service-connected anxiety disorder do not equate to those contemplated for in a 50 percent rating for reduced reliability and productivity. Indeed, the examiner's opinion regarding the occupational and social impairment due to the anxiety disorder shows that it did not cause reduced reliability and productivity. Rather, the examiner opined that it caused occasional decreases in work efficiency and occasional inability to socialize. A letter from the Veteran's VA psychiatrist in May 2011 indicated that the Veteran had insomnia, depression and anxiety, which had worsened lately. His symptoms included poor sleep and poor concentration. A VA treatment record also in May 2011 reveals that the Veteran felt anxious and depressed. In July 2011, the Veteran again reported feeling anxious and depressed, especially when he thought about his dead wife and son. These records show that he did not exhibit symptoms such as those contemplated for by a 50 percent rating. The results of a VA examination in March 2012 also fail to show that the Veteran meets the criteria for a rating in excess of 30 percent. He was diagnosed with generalized anxiety disorder and major depressive disorder. The examiner indicated that it was possible to differentiate what symptoms were attributable to each diagnosis. The major depressive disorder stemmed from complicated bereavement secondary to the loss of the Veteran's wife and son. The examiner assigned a GAF score of 60 to the anxiety disorder and a score of 53 to the major depressive disorder. The Veteran was opined to have occupational and social impairment with reduced reliability and productivity. However, the examiner indicated that the majority of the Veteran's impairment was secondary to major depressive disorder. The Veteran worked successfully with anxiety disorder until retirement for 27 years. His anxiety disorder would result in occasional decrease in work efficiency. He continued to be active in AMVETS, going there a couple of times per week to be with friends. He was still retired. The Veteran's sister-in-law died recently at a young age. The Veteran endorsed an increase in depression and loneliness as he contemplated and adjusted to multiple losses. His symptoms included depressed mood; anxiety; panic attacks occurring weekly or less often; chronic sleep impairment; 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; and suicidal ideation. As with the March 2011 examination, this examination shows that the majority of the Veteran's psychiatric impairment is a result of his major depressive disorder due to complicated bereavement. The examiner clearly opined that although the Veteran does have occupational and social impairment with reduced reliability and productivity, the actual impairment from the service-connected anxiety disorder only caused occasional decrease in work efficiency. Such opinion is uncontradicted and is consistent with the evidence of record, including the symptomatology documented during previous examinations. A letter from the Veteran's VA psychiatrist in August 2012 also does not show that a rating in excess of 30 percent is warranted. The Veteran reported having flashbacks, nightmares and poor sleep related to his experiences in service. He remained symptomatic. This letter does not indicate that the Veteran has symptomatology resulting in occupational and social impairment with reduced reliability and productivity. The totality of the evidence shows that the Veteran's service-connected anxiety disorder, does not in and of itself, cause 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Although impairment of long term memory was shown in May 2010, the overall evidence fails to show that such symptom, in connection with the other symptoms shown during this appeal, equates to reduced reliability and productivity. Any disturbances of motivation and mood shown during this appeal are shown to be related to his nonservice-connected major depressive disorder. Throughout this appeal, the Veteran reported loneliness, depression and anxiety, which the pertinent treatment records and VA examinations attribute to the Veteran's major depressive disorder due to complicated bereavement following the deaths of his wife and son. Furthermore, the symptoms contemplated for in the assigned 30 percent rating include depressed mood. In reaching the conclusion that a rating in excess of 30 percent is not warranted, the Board notes that the reported GAF scores attributed to the anxiety disorder of 58 and 60 are indicative of moderate symptoms, which are consistent with the currently assigned 30 percent rating. However, the Board also notes that, while important, the GAF scores assigned in a case are not dispositive of the evaluation and must be considered in light of the actual symptoms of the Veteran's disorder. See 38 C.F.R. § 4.126(a). In this case, the extent and severity of the Veteran's actual anxiety disorder reported and/or shown are suggestive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as: depressed mood, anxiety, panic attacks (weekly or less often), chronic sleep impairment and mild memory loss; i.e., the level of impairment contemplated in the assigned 30 percent rating for psychiatric disabilities. For these reasons, the Board finds that the criteria for a rating in excess of 30 percent for anxiety disorder have not been met. Furthermore, the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's anxiety disorder symptoms and disability level. Marked interference with employment beyond that contemplated by the schedular criteria has not been shown. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability. The evidence does not show that the Veteran's anxiety disorder has resulted in interference with employment or activities of daily life which would warrant a rating in excess of 30 percent. B. TDIU The Veteran contends that he is unemployable due to his service-connected disabilities. See, e.g., December 2009 claim. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2012). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran's advancing age. 38 C.F.R. § 3.341(a). See also 38 C.F.R. § 4.19 (2012) (age may not be a factor in evaluating service-connected disability or unemployability) & Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the current appeal, service connection has been granted for anxiety disorder, evaluated as 30 percent disabling; lumbosacral strain with osteoarthritis, evaluated as 20 percent disabling; right knee condition, evaluated as 10 percent disabling; degenerative arthritis of the right hip, evaluated as 10 percent disabling; patellofemoral osteoarthritis of the left knee, evaluated as 10 percent disabling; and right lumbosacral radiculopathy, evaluated as 10 percent disabling. The Veteran's combined service-connected disability rating is 70 percent. As such, the Veteran does not meet the criteria for consideration for entitlement to TDIU on a schedular basis because, although his combined rating is 70 percent, he does not have a disability rated as at least 40 percent. It is also the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a) , an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected conditions and advancing age, which would justify a total rating, based on unemployability. Van Hoose, 4 Vet. App. at 363; see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Moreover, as already noted, an inability to work due to non-service-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14 , 4.19. In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. After reviewing the pertinent evidence of record, the Board concludes that the criteria for the award of a TDIU have not been met. Regarding his employment background, his last employer reported that the Veteran worked as a bus driver from February 1961 to August 1984. He retired from that position. In his application for TDIU, the Veteran reported that he did not leave his last employment due to disability. Regarding his education background, he completed two years of high school and had no additional training or education. At no time during this appeal has the Veteran contended seeking employment and being turned down for substantially gainful employment due to his service-connected disabilities. He also has not reported leaving any employment due to his service-connected psychiatric and orthopedic disabilities. The only medical evidence of record indicates that the Veteran's disabilities do not preclude substantially gainful employment. The March 2011 VA psychiatric examiner opined that the Veteran's anxiety symptoms would not impact his capacity for employment, but his [nonservice-connected] depression left him unable to work. A March 2011 VA joint examiner opined that the Veteran should have limited physical employment due to his knees, right hip and lumbosacral spine. He could do sedentary light work. There was no problem with sitting for extended periods of time; the Veteran did not complain of any pain or discomfort with sitting. His restrictions included no frequent walking or lifting anything greater than 15 pounds. At a VA general medical examination in March 2012, the examiner opined that the Veteran needed an assistive device to ambulate due to the combination of progressive osteoarthritis of the back, hip and spine. As the Veteran was observed to be unstable when attempting to ambulate without the cane, he was capable of less than sedentary work. However, in a clarification opinion obtained in July 2012, the examiner opined that after careful review of the case, the Veteran was capable of doing sedentary work. The need for assistive device for ambulation did not preclude or prevent sedentary work activities. During the hip and spine portions of the examination, it was noted that the Veteran needed an assistive device to ambulate, placing him in a sedentary work status. The use of the term "less than sedentary" in the previous report was incorrect and should be deleted from the report. In this case, no medical professional has provided any opinion indicating that the Veteran's service-connected disabilities render him incapable of performing the physical and mental acts required by employment. Even with his physical disabilities, the Veteran was opined to able to engage in sedentary employment. As for his psychiatric disorder, the evidence shows that his anxiety symptoms do not render him unemployable. As noted by one of the VA examiners, the Veteran was able to work for 27 years even with his anxiety symptoms. Rather, as for as psychiatric impairment, the evidence shows that his nonservice-connected complicated bereavement with major depressive disorder causes him to be unemployable. In deciding whether an award of TDIU is warranted, the Board cannot take into account nonservice-connected disabilities or age. At no time during this appeal has the Veteran demonstrated that he is unable to engage in substantially gainful employment due to his service-connected disabilities. He has not reported any efforts that he has undertaken to engage in employment. In sum, the Veteran's contentions and the pertinent evidence of record fail to show that his service-connected disabilities preclude employment. Based on the foregoing, the Board finds that the Veteran's service-connected disabilities do not preclude all forms of substantially gainful employment consistent with his educational background and occupational experience. Accordingly, the Board concludes that the criteria for a TDIU are not met and referral for extraschedular consideration is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to a TDIU is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to a rating in excess of 30 percent for anxiety disorder is denied. Entitlement to a TDIU is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs