Citation Nr: 1315508 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 05-35 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an extraschedular rating in excess of 40 percent for postoperative residuals of a right hip dislocation. 2. Entitlement to a rating in excess of 10 percent for a schizophrenic reaction, latent type. 3. Entitlement to a total rating based upon individual unemployability (TDIU), to include on an extraschedular basis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active duty in the U.S. Navy from August 1973 to March 1975. These claims come before the Board of Veterans' Appeals (Board) on appeal of a May 2005 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia denied ratings in excess of 30 percent for residuals of a splenectomy and a right hip disability and in excess of 10 percent for a psychiatric disability and also denied a TDIU. The Board remanded these claims to the RO for additional development in January 2008. In July 2011, the Board issued a decision denying a rating in excess of 30 percent for residuals of a splenectomy and increasing the 30 percent rating for postoperative residuals of a right hip dislocation to 40 percent. The Board also remanded the claims for a rating in excess of 10 percent for a schizophrenic reaction, latent type, and a TDIU to the RO for additional development. The Veteran appealed that portion of the Board's January 2008 decision not referring for extraschedular consideration the claim for an increased rating for postoperative residuals of a right hip dislocation to the U.S. Court of Appeals for Veterans Claims (Court). In a Memorandum Decision issued in June 2012, the Court vacated that portion of the Board's decision only and remanded the matter to the Board for further proceedings consistent with the Memorandum Decision. According to that decision, the Board failed to provide an adequate statement of reasons or bases for not referring the Veteran's claim for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (2012), provided no support for its bare conclusion that the Veteran's reported right hip symptoms are contemplated by the assigned schedular rating, and failed to compare those symptoms as reported during the August 2004 VA examination with the rating criteria to determine whether the criteria reasonably describe the Veteran's disability level and symptomatology. A review of the Virtual VA paperless claims processing system (Virtual VA) reveals no other pertinent documents for consideration in support of these claims. The Board will REMAND the claim of entitlement to a rating in excess of 10 percent for a schizophrenic reaction, latent type to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran's right hip disability does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 2. The Veteran is not unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an extraschedular rating in excess of 40 percent for postoperative residuals of a right hip dislocation are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.321(b) (2012). 2. The criteria for entitlement to a total rating based upon individual unemployability (TDIU), to include on an extraschedular basis, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law as well as the controlling decisions of the appellate courts. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); see also Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (requiring generic notice in claims for an increased evaluation, that is, notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). Ideally, the RO should provide the claimant VCAA prior to its initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively cure this error by providing any necessary VCAA notice and then readjudicating the claim in a statement of the case (SOC) or supplemental SOC (SSOC). In such a case, the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis. As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by affording him a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). Notice The RO provided the Veteran VCAA notice on these claims by letters dated July 2004, October 2004, January 2005, March 2008, May 2009, December 2009, July 2010 and August 2011. The RO sent most of the letters after initially adjudicating the Veteran's claims. Those letters are therefore untimely. The RO cured this timing defect later, however, by readjudicating the claims in an October 2012 SSOC. Mayfield v. Nicholson, 499 F.3d at 1317. These letters satisfy the content requirements noted above. They inform the Veteran of the evidence needed to substantiate his claims and identify the type of evidence that would best do so. They include all necessary information on effective dates in the event an increased rating or TDIU is granted. They identify the evidence the RO requested and/or received in support of the Veteran's claims and the evidence it was responsible for securing. They indicate that the RO will make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identifies its source(s), but that it is the Veteran's responsibility to ensure VA's receipt of this and any other pertinent evidence. In remands dated January 2008 and July 2011, the Board provided the Veteran further notice regarding the type of evidence needed to support his claims and whose responsibility it is to obtain it. Specifically, the Board indicated that, given the Veteran's assertion that he is on disability retirement, VA has a duty to obtain employment information in support of his claims. The Board also indicated that VA's duty to assist includes affording the Veteran a VA examination, during which an examiner can provide an opinion as to the Veteran's employability in light of his service-connected disabilities. The Veteran has had a meaningful opportunity to participate in the development of these claims by receiving all essential notice. Neither the Veteran nor his representative asserts that VA failed to comply with VCAA's notice provisions. Assistance The RO also satisfied its duty to assist the Veteran in the development of these claims by securing and associating with the claims file all documents the Veteran identified as being pertinent to his claims, including service and post-service treatment records and information from the Office of Personnel Management (OPM). The RO also afforded the Veteran VA examinations in support of his claims, during which examiners discussed the severity of his service-connected right hip disability and his employability. Neither the Veteran nor his representative asserts that there are any other outstanding records that need to be obtained in support of his claims or that the examinations were inadequate. When VA affords a claimant a VA examination or obtains a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the record indicates otherwise, or the claimant challenges the adequacy of the examination or opinion, the Board may assume, and need not affirmatively establish, the adequacy of the examination report and the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). There is no indication that there is additional evidence could be developed. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources). Analysis The Veteran seeks an extraschedular rating for the postoperative residuals of a right hip dislocation, now evaluate as 40 percent disabling under the Rating Schedule, and a TDIU. He claims that his right hip and leg disorders are of such severity that he is unable to continue standing all day at work. He alleges that this pain interferes with his ability to keep up with his job duties, which in turn hindered his ability to get along with others at work. He also claims that symptoms of his right hip disability (locking up and giving out of his hip) contributed to a fall, which caused a back injury necessitating his retirement based on disability. In certain circumstances, a claimant may be assigned an increased rating on an extraschedular basis. The question of whether such a rating may be assigned on such a basis is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign a rating on an extraschedular basis in the first instance, when the question is raised either by the claimant, or reasonably by the evidence of record, the adjudicator must specifically decide whether to refer the claim to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321(b)(1) for consideration of the matter. Barringer v. Peake, 22 Vet. App. 242 (2008). He is authorized to approve the assignment of an extraschedular rating if the claim "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). If the claimant or the evidence raises the question of entitlement to an increased rating on an extraschedular basis, as a threshold matter, the Board must determine whether the evidence before VA presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This requires comparing the level of severity and symptomatology of the service-connected disability with the established criteria found in the Rating Schedule pertaining to that disability. Thun v. Peake, 22 Vet. App. 111, 118 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). If the criteria reasonably describe the level of severity and symptomatology of the disability, the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is adequate and no referral is necessary. Id. If the criteria do not reasonably describe the level of severity and symptomatology of the disability, the disability picture is not contemplated by the Rating Schedule and the assigned schedular rating is inadequate. The RO or Board must then determine whether the exceptional disability picture involves other related factors such as those outlined in 38 C.F.R. 3.321(b)(1) as "governing norms", including "marked interference with employment" and "frequent periods of hospitalization". Id. In this case, during outpatient treatment visits and VA examinations, the Veteran reported the following right hip symptoms: constant pain; cramping; weakness; stiffness; frequent giving out and locking up, and fatigue. He describes flare-ups of these symptoms, during which he has to rest and he experiences additional limitation of movement. He indicates that his right hip symptoms interfere with physical activities and standing and sitting. The rating criteria do not reasonably describe the level of severity and symptomatology of the Veteran's right hip disability. The RO has rated this disability as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5252 and 5255 (2012), the former of which governs ratings of limited flexion of the thigh;, the latter governs ratings of impairment of the femur and characterizes the level of impairment as slight, moderate or marked knee or hip disability. 38 C.F.R. § 4.71a, DC 5252, 5255 (2012). DC 5252, under which the 40 percent rating is assigned, necessarily contemplates the causative factors of the limited motion, including pain, weakness, stiffness and fatigue, but not necessarily the cramping, giving out and locking up. Although the RO has identified DC 5255 as applicable to the Veteran's rating, that DC does not provide for the assignment of a 40 percent rating. Regardless, DC 5255 does not describe the symptomatology necessary to establish marked disability of the hip. The Board cannot therefore determine with certainty whether all of the Veteran's right hip symptoms are contemplated by DC 5255 or in the current rating. In June 2012, on the basis that DC 5252 and the broad rating criteria of DC 5255 do not contemplate the symptomatology of the Veteran's right hip disability, AMC referred this claim for extra-schedular consideration. In October 2012, the Director of Veterans Benefits Administration Compensation Service submitted an opinion concluding that an increased rating is not assignable on an extra-schedular basis. The evidence of record supports the Director's conclusion in this regard. It shows that the Veteran's right hip disability picture is not so exceptional or unusual with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. This disability has not necessitated hospitalization, frequent or otherwise, and has not interfered markedly with his employment. The Veteran's VA Form 21-8940 (Veteran's Applicaton For Increased Compensation Based on Unemployability) and records from OPM confirm that the Veteran worked for decades as an automotive technician at the U. S. Postal Service until July 2004, when he retired based on disability. Other documents of record indicate that since 2006, he has been working, albeit in a different capacity. According to VA outpatient treatment records, for four years prior to receiving disability retirement (beginning in approximately 2000), physicians placed the Veteran on light duty because, despite his rheumatoid arthritis, he wanted to work. In 2003, however, he fell from a ladder while cleaning his gutters, severely injuring his right knee and back. In March and December 2004, a Chief of VA's Rheumatology Section noted that the medication the Veteran was taking for the injuries and the limited physical activity in which he was engaged due to the injuries kept his rheumatoid arthritis under control. That physician concluded that the combination of the injuries and the rheumatoid arthritis precluded the Veteran from returning to work as a mechanic. Clearly, to the extent medical professionals recognized marked interference with employment prior to 2006, when the Veteran began working again, they did not find the interference due to the Veteran's service-connected right hip disability or any fall caused by that disability. Rather they found the interference due to the Veteran's rheumatoid arthritis. In 2003 and 2004, multiple physicians noted that work was exacerbating the Veteran's rheumatoid arthritis, but they recommended light duty because the Veteran still wanted to work despite his health status. He then fell and, due to injuries from the fall, physicians and the Veteran agreed that he could no longer work as a mechanic. At that time, the rheumatoid arthritis still played a primary role in the Veteran's inability to work. In September 2006, the Veteran reported that he had been working at a new job for two weeks and that, although he wore gel inserts, he still experienced pain. However, even assuming the pain was due to the right hip disability, the Veteran reported in February 2010 that he was working in the cafeteria of a private school. Although not dispositive to the question, there is also no medical evidence indicating any of the factors suggesting marked interference with his employment at any time during the course of this appeal. His assertions that the disability led to the fall and the injuries from the fall led to his retirement thus represent the only evidence of record, which could be construed as establishing marked interference with employment. Although the Veteran is competent to state that he experienced certain right hip symptoms that are capable of lay observation, such as pain and discomfort, and describe how they hinder him from satisfying his work duties and responsibilities, with no training or expertise in medicine, he is not competent to attribute marked occupational impairment to these symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (layperson is competent to report lay observable symptoms, but lacking in medical training and expertise, is not competent to diagnose a medical condition, if not a "simple" condition, or to provide probative comment on its etiology). In any event, even if he were competent to do so, the Board would find his assertions not probative on the basis that the Veteran lacks credibility. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (the Board must make an express credibility finding regarding lay evidence); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). In August 2011, during a VA examination, the Veteran reported that he was not working. He also reported that he had not worked since 2004 in contradiction to the statements he made during VA outpatient treatment visits for the purpose of receiving adequate care. As there is no competent and credible evidence of record establishing that the Veteran's right hip disability presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards, the Board concludes that the criteria for entitlement to an extraschedular rating in excess of 40 percent for postoperative residuals of a right hip dislocation are not met. A claimant is responsible for presenting evidence in support of his claim for benefits under laws administered by VA. VA is responsible for considering all such evidence, lay and medical. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the evidence is not in relative equipoise. Rather, as a preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. TDIU As an initial matter, typically in cases such as this, where a claim for an increased rating is remanded and a TDIU claim is pending, the Board also remands the TDIU claim on the basis that it is inextricably intertwined with the increased rating claim. In this case, however, there is no reasonable possibility that doing so would change the basis of the disposition of this claim. Even if, on Remand, the RO determines that the Veteran is entitled to a higher rating for his psychiatric disability, for reasons that will become evident below, such a finding would not alter the Board's conclusion. A total disability evaluation may be assigned where the schedular evaluation is less than total (i.e., less than 100 percent) when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident, or affecting a single bodily system, will be considered as one disability for the above purposes of determining whether the Veteran has sufficient rating. 38 C.F.R. § 4.16(a) (2012). The Veteran does not satisfy the percentage requirements of § 4.16(a). He has multiple service-connected disabilities, including postoperative residuals, dislocation right hip, posteriorly, rated 40 percent disabling, splenectomy, rated 30 percent disabling and schizophrenic reaction, latent type, rated 10 percent disabling, which combined are only 60 percent disabling. That notwithstanding, it is VA's established policy that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. In such a case, a rating board is to submit the claim to the Director, Compensation and Pension Service, for extra-schedular consideration. The rating board is to include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue" 38 C.F.R. § 4.16(b) (2012). While the regulations do not define "substantially gainful employment", VA adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." See also Faust v. West, 13 Vet. App. 342 (2000) (defining "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to the veteran's earned annual income....) In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court discussed the meaning of "substantially gainful employment," in part, by noting the following standard announced by the United States Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Id. Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). A Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. 38 C.F.R. § 4.18. A Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his/her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment, however, is not enough. A high rating in itself constitutes recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he/she can find employment. Id. That said, requiring a Veteran to prove that he/she is 100-percent or totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests an intent to impart flexibility into a determination of a veteran's overall employability. A requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The preponderance of the evidence in this case is against a grant of a TDIU under 38 C.F.R. § 4.16(b). Incidentally, in the event the RO determines on remand that an increased rating should be assigned the Veteran's psychiatric disability and that rating results in a combined disability rating of at least 70 percent, the Board notes that the preponderance of the evidence is also against a grant of a TDIU under 38 C.F.R. § 4.16(a). The Veteran's occupational background and educational attainment are provided in part in his VA Form 21-8940, where he indicated that he graduated from high school, had two years of college, and worked from August 1977 to July 2004 as an automobile technician with the U. S. Postal Service. In written statements submitted in 2001 and 2002, while still working and on light duty, the Veteran began to complain that he could no longer do the mechanical job duties required in his position. He indicated that he wanted to get unemployability because he was about to lose his job and could not support his young child on work disability benefits. In July 2004, OPM informed the Veteran that his application for disability retirement had been approved and advised him to notify his agency that he needed to be separated from government service. The reasons the Veteran left this job are noted above and confirmed by OPM's treatment records and March and December 2004 written comments of the Chief of a VA Rheumatology Section. These documents show that the Veteran was granted disability retirement based on a combination of trauma (resulted in a back disability and right knee disability) and persistent synovitis from rheumatoid arthritis. The Chief concluded that these disabilities rendered the Veteran totally and permanently disabled. From 2004 to 2006, the Veteran remained unemployed secondary to these nonservice-connected disabilities. Since September 2006, however, he has been able to secure and follow a substantially gainful occupation regardless of his service-connected disabilities. In August 2011 and June 2012, two VA examiners and the Director, Compensation Service, reviewed the claims file and concluded that the Veteran is not unable to secure and follow a substantially gainful occupation due to service-connected disabilities, considered individually (right hip and psychiatric disability) and collectively. And they so concluded despite not knowing that the Veteran was actually employed as of September 2006, a fact that bolsters their conclusions. (When the VA examiners evaluated the Veteran, the Veteran reported that he had not worked since 2004.) The VA examiners and the Director based their conclusions on a review of the claims file and a finding that there was no evidence that the Veteran was unemployed or unemployable due to service-connected disabilities. The Veteran has not submitted a medical opinion refuting those of the VA examiners and Director. The Veteran's assertions, which, noted above, are not competent or credible, represent the only evidence of record establishing that his service-connected disabilities, considered collectively, render him unable to secure or follow substantially gainful employment. In the absence of competent and credible evidence establishing that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, the Board concludes that the criteria for entitlement to a TDIU are not met. In reaching this conclusion, the Board considered the applicability of the benefit-of-the-doubt doctrine, but as there is not an approximate balance of positive and negative evidence of record, this doctrine is not for application. ORDER An extraschedular rating in excess of 40 percent for postoperative residuals of a right hip dislocation is denied. A TDIU, to include on an extraschedular basis, is denied. REMAND Additional development is needed before adjudicating the claim of entitlement to a rating in excess of 10 percent for a schizophrenic reaction, latent type. Reports of VA examinations of record are inadequate to decide this claim. The Veteran's service-connected psychiatric disability is characterized as schizophrenic reaction, latent type, a psychosis, and over the years, including during the course of this appeal, it remained in remission. In 2001, doctors began diagnosing the Veteran with other psychiatric disabilities, first depression and anxiety disorder, both neuroses, and later, a psychotic disorder, not otherwise specified. In addition, during the course of this appeal, doctors diagnosed dependence and abuse of alcohol and various drugs, but during treatment visits, no doctor discussed whether any other psychiatric or substance abuse disorder was part of, or distinguishable from, the Veteran's service-connected schizophrenic reaction. The Board explained in its prior remand that such an opinion is needed and, in response to the remand directives, an examiner ruled out a relationship between the Veteran's polysubstance dependence and psychotic disorder. He did not provide rationale for this conclusion and did not discuss the Veteran's depression and anxiety disorder or any other neurosis. Such an opinion is crucial in this case because according to reports of psychiatric evaluations, over the course of this appeal, the Veteran's psychiatric disability worsened, but it is unclear whether the worsening is due to service-connected or nonservice-connected psychiatric symptoms. Accordingly, the Board REMANDS this claim for the following action: 1. Ascertain if the Veteran has any further lay or medical evidence that is not presently in the claims file pertaining to the claim being remanded. Provide the Veteran with appropriate releases of information to obtain any evidence cited and advise him that he may submit such evidence on his own. 2. Schedule the Veteran for a clarifying VA examination, preferably by a qualified physician who has previously examined the Veteran and is aware of his medical record, to ascertain if the symptoms and effects of the Veteran's nonservice-connected psychiatric disabilities are distinguishable from those of his service-connected schizophrenic reaction, latent type, now in remission. The following considerations will govern the examination: a. Review the claims file, including the Veteran's service treatment records, and indicate in writing in the report that the review included all pertinent information; b. In addition to any other information of record, the examiner's attention is called to the following: The Veteran's service treatment records from August 1973 to March 1975 active military duty, which include findings of in-service aggravation of latent type schizophrenia and multiple drug dependence. Outpatient treatment records dated since 2001 with diagnoses of neuroses, including depression with anxiety and agitation and anxiety disorder, a psychotic disorder (2011), not otherwise specified, and substance abuse and dependence. c. Offer an opinion as to whether the symptoms and effects of the Veteran's depression with anxiety and agitation, anxiety disorder, and/or psychotic disorder, not otherwise specified (all diagnosed since 2001), are distinguishable from, or part of or related to, the symptoms and effects of his service-connected schizophrenic reaction. d. If not, offer an opinion as to whether the Veteran's depression with anxiety and agitation, anxiety disorder, and/or psychotic disorder, not otherwise specified (all diagnosed since 2001), are aggravated by the Veteran's service-connected schizophrenic reaction. e. Considering the Veteran's service treatment records, provide the basis for the VA examiner's August 2011 opinion ruling out a relationship between the Veteran's polysubstance dependence and service-connected psychiatric disability. f. Offer an opinion as to whether the Veteran's polysubstance dependence is aggravated by his service-connected psychiatric disability. IN ALL OPINIONS, THE EXAMINER MUST PROVIDE A FULLY REASONED EXPLANATION FOR HIS OR HER RESPONSES, INCLUDING BOTH THE FACTUAL AND MEDICAL BASES FOR THE OPINIONS REACHED. 3. Review the examination report to ensure that it includes all requested information and, if not, return it to the examiner for correction pursuant to 38 C.F.R. § 4.2. 4. Readjudicate the claim being remanded based on all of the evidence of record. If the benefit sought on appeal is not granted to the Veteran's satisfaction, issue a SSOC. List the additional evidence the RO considered and identify the relevant actions the RO took and the evidence and applicable law and regulations it considered in support of the appeal. Allow an appropriate period of time for a response. Thereafter and subject to current appellate procedure, return this case to the Board for further consideration. The Board intimates no opinion as to the ultimate outcome in this case, but advises the Veteran that he has the right to submit additional evidence and argument on the remanded claim. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs