Citation Nr: 1328237 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 09-26 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 70 percent for major depressive disorder. 2. Entitlement to a total disability rating on the basis of individual unemployability (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD S. Heneks, Counsel INTRODUCTION The Veteran served on active duty from May 1975 to May 1979 and from August 1981 to August 1985. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions of May 2008 and July 2009 by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina. The former granted service connection for major depressive disorder and assigned an initial evaluation of 30 percent, effective October 2007; and the latter denied entitlement to a TDIU. The Veteran perfected separate appeals of both determinations. In July 2009, a decision review officer granted an increased initial evaluation for the major depressive disorder from 30 to 70 percent, effective retroactively to October 2007. The Veteran indicated he wants an evaluation in excess of 70 percent, and thus the appeal continued. In July 2010, the Board denied both claims. The Veteran appealed that determination to the U.S. Court of Appeals for Veterans Claims (CAVC or the Court) and in a July 2011 Memorandum Decision, the Court vacated the Board's decision and remanded the matters for further development. In March 2012 and January 2013, the Board remanded the claims for further development. As will be discussed below, the Board finds that VA has substantially complied with the Board's remands with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's major depressive disorder is manifested by total occupational and social impairment. 2. Service connection is in effect for major depressive disorder, currently evaluated as 70 percent disabling, and residuals of L2 fracture, currently evaluated as 20 percent disabling. The combined schedular rating is 80 percent. 3. The Veteran attended college and has worked in security, sales, and at the post office; and as a truck driver, manager, and bouncer. He last worked in 2007. 4. The Veteran's service-connected disabilities are not so severe as to prevent him from engaging in employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The requirements for an initial evaluation in excess of 70 percent for major depressive disorder are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.655(b), 4.1, 4.7, 4.130, Diagnostic Code 9434 (2012). 2. The requirements for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.655(b), 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Regarding the claim for a higher initial evaluation for major depressive disorder, as service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Regarding the claim for entitlement to a TDIU, the requirements of the VCAA have been met. VA notified the Veteran in correspondence dated in October 2008 prior to the July 2009 rating decision on appeal, of the information and evidence needed to substantiate and complete a claim for a TDIU, the responsibilities each party had in obtaining and submitting evidence, and how effective dates are assigned. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claims, and as warranted by law, affording VA examinations. Records from the Social Security Administration were obtained and are in the claims file. VA treatment records are also in the claims file. There is no assertion that any identified records were not sought or obtained. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). Pursuant to the Court's Memorandum Decision, the Board remanded the claims for VA to ask the Veteran to identify treatment he had received, to obtain his Vocational Rehabilitation file, and for VA examinations. In March 2012, VA sent the Veteran a letter asking him to identify treatment he had received and he replied in April 2012 with records from private physician, Dr. Hassan Jabbour. The Veteran underwent VA examinations for his service-connected disabilities in May 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions obtained in this case are adequate, as they are based on consideration of all of the pertinent evidence of record, to include the Veteran's medical records, examination, testing, and his statements. The examiners provided a complete rationale for the opinions stated, relying on and citing to the records reviewed, and addressed the questions posed by the Board. There is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Lastly, following the January 2013 remand, VA attempted to obtain the Veteran's Vocational Rehabilitation file. The record contains a May 2013 email from the RO reflecting that there is no record of the Veteran ever filing for Vocational Rehabilitation benefits. The Veteran was informed of such in May 2013 and no response has been received from the Veteran. A June 2013 Formal Finding of Unavailability documents the attempts to obtain this file. Accordingly, the Board concludes that it is reasonably certain that Vocational Rehabilitation records do not exist and that further efforts to obtain them would be futile. 38 C.F.R. § 3.159(e). The Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Analysis A. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58. In Fenderson v. West, 12 Vet. App. 119 (1999), however, it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case with the Veteran's major depressive disorder. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson, 12 Vet. App. at 126. 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. 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. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to 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, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Mauerhan, 16 Vet. App. at 443. Global Assessment of Functioning (GAF) scores are 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, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM IV), page 32). Although the Rating Schedule does indicate that the rating agency must be familiar with the Diagnostic and Statistical Manual of Mental Disorders, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Rather, GAF scores are but one factor to be considered in conjunction with all the other evidence of record. The applicable rating criteria for mental disorders provide that an acquired mental disorder which results in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, warrants a 100 percent evaluation. 38 C.F.R. § 4.130. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against assigning an evaluation in excess of 70 percent for major depressive disorder at any point during this appeal. The evidence does not show that the Veteran's service-connected major depressive disorder results in total occupational and social impairment. Initially, the Board notes that physicians have indicated that the Veteran is exaggerating the severity of his symptoms and malingering. At the very least, this calls into question the credibility of the Veteran's statements made to these practitioners. Specifically, in March 2008, VA physician Dr. KH indicated that the Veteran reported an unusual combination of symptoms including sleep disturbance, paranoia, and delusional thinking (past hypervigilance). The examiner noted that the Veteran's behavior was very exaggerated, in one instance he had difficulty stating a detailed history, but then he gave an extremely detailed employment history. Psychological testing was performed in March 2008 by Dr. CW, also a VA physician. Dr. W concluded that results from the Minnesota Multiphasic Personality Inventory-II (MMPI-II) and Trauma Symptom Inventory (TSI) were invalid and that eight of the ten clinical scales on the MMPI-II and seven of the ten clinical scales on the TSI were extremely elevated. According to Dr. W, the over endorsement could be a plea for help. After a consultation with Dr. W, Dr. H concluded that there was overexaggeration and overendorsement of psychological symptoms. Dr. H indicated that these findings "can be caused by a cry for help;" however, she concluded that the Veteran more likely than not met the diagnostic criteria for major depressive disorder with possible psychotic features. Additionally, after VA examination in May 2012, the examiner concluded that there was clear and unmistakable evidence of symptom amplification/malingering during the evaluation. In support of this conclusion, the examiner noted evidence of symptom amplification/malingering on multiple symptom validity measures and indices of cognitive effort during the examination. One was endorsement of items on the SIMS, a well-standardized measure of infrequent and improbable psychiatric symptoms that resulted in a total score of 26, which is above the liberal cut off of 25 for evidence of psychiatric symptom amplification. Further, the Veteran's performance on the MMPI-II resulted in a grossly invalid clinical and supplementary scale profile. As the Veteran did not respond in a random or haphazard fashion, his MMPI-II profile invalidity and greater than chance likelihood of intentionally over-reporting psychiatric symptom distress could not be accounted for by random chance responding on the MMPI-II. Therefore, the examiner reasoned that the Veteran's MMPI-II clinical scale results are uninterpretable and invalid representations of his true level of psychiatric symptom/distress. Moreover, the Veteran's scores on the TOMM, a well-standardized measure of simple visual recognition memory that is sensitive to intentionally poor cognitive effort, were indicative of a greater than chance likelihood of intentionally poor effort in an attempt to portray one's memory as flawed. Additionally, his performance on the CVLT-2, a well-standardized cognitive measure of auditory-verbal learning, recall and recognition memory, produced errors reflecting that his errors were likely intentional. The examiner concluded that because of the clear and unmistakable evidence of symptom amplification/malingering, the remainder of the Veteran's cognitive screening results and psychiatric symptom complaint endorsement on psychological testing measures were rendered invalid estimates of his current level of functioning and psychiatric distress levels. For the above reasons, the Board finds that the Veteran's reports of symptoms made to these practitioners should be afforded little to no probative value. Specifically, the May 2012 VA examiner found clear and unmistakable evidence of symptom amplification/malingering by the Veteran during the evaluation. Although the Board acknowledges that Dr. H and Dr. W indicated that the Veteran's overexaggeration and overendorsement of psychological symptoms may be a cry for help; nevertheless, both VA examiners concluded that the Veteran did overexaggerate and overendorse the psychological symptomatology he was experiencing. Regardless of the reasoning why, the finding that the Veteran did overexaggerate/overendorse his symptomatology calls into question the validity of the statements he made to these examiners. At the same time, the Board finds the VA examiners' conclusions and analysis of the reported symptomatology to be highly probative. Specifically, Dr. H and Dr. W's conclusion and the analysis as to why the Veteran overexaggerated and overendorsed the psychological symptomatology he was experiencing were based on examination of the Veteran, psychiatric testing, and the examiners' judgment and expertise. The Board also finds that the May 2012 VA examiner's conclusions were based on examination of the Veteran, psychiatric testing, and the examiner's judgment and expertise. There is also evidence from a physician that some of the Veteran's psychiatric symptomatology is clearly due to a nonservice-connected borderline personality disorder. In this regard, the May 2012 VA examiner diagnosed major depressive disorder, recurrent, severity unknown and borderline personality disorder. The symptoms that applied to the diagnoses were depressed mood, anxiety, suspiciousness, impaired judgment, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, and impaired impulse control, such as unprovoked irritability with periods of violence. The Board is mindful that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, reasonable doubt dictates that such signs and symptoms will be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181 (1998). The Board finds it significant, however, that the May 2012 VA examiner was able to separately identify and differentiate which symptoms and effects were attributable to the Veteran's service-connected major depressive disorder and to his non-service connected borderline personality disorder. Specifically, the examiner concluded that the Veteran's report of prolonged periods of depressive symptoms, in which he wants to sleep all day, is tearful, and does not want to engage with others, is indicative of symptoms associated with major depressive disorder. On the other hand, the Veteran's longstanding history of interpersonal difficulties, affective/emotional instability, stress-related paranoid ideation and marginal psychotic symptoms (infrequent, non-command auditory hallucinations), impulsivity, identity disturbance, and anger management problems are directly the result of his borderline personality disorder. The examiner also determined that the Veteran's history of social/occupational functioning problems are at least as likely as not better accounted for diagnostically by the presence of borderline personality disorder. As the examiner clearly identified some of the Veteran's symptoms as due to the non-service connected borderline personality disorder, those symptoms can be excluded from consideration in determining the proper disability rating for the service-connected major depressive disorder. Again, the Board finds the May 2012 examiner's conclusions to be highly probative as they are supported by a review of the relevant medical evidence and history, examination of the Veteran, psychiatric testing, and the examiner's expertise. The examiner determined that the Veteran's symptoms reflect that he carries all of the borderline personality disorder symptoms, except for social gestures. Of note to the examiner was the Veteran's history of unstable and intense interpersonal relationships, as evidenced by multiple marriages; affective regulation problems supported by his history of irritability and uncontrollable anger; and reports of hearing voices and paranoid ideation especially during periods of high stress, and impulsivity and identity disturbance commonly associated with a diagnosis of borderline personality disorder. The examiner also noted the Veteran's report that during an examination Dr. Jabbour also mentioned the possibility of borderline personality disorder. This report suggests that another physician had also considered a diagnosis of borderline personality disorder for the Veteran. Given the above, the Board concludes that the Veteran's symptomatology consistent with a longstanding history of interpersonal difficulties, affective/emotional instability, stress-related paranoid ideation and marginal psychotic symptoms, impulsivity, identify disturbance, and anger management problems are the result of his nonservice-connected borderline personality disorder and are not for consideration in determining the proper disability rating for service-connected major depressive disorder. Moreover, even when considering all of the Veteran's psychiatric symptomatology, a 100 percent disability rating is not warranted at any point during the course of this appeal. In particular, the Board finds reports from Dr. Jabbour, who treated the Veteran from October 2007 to February 2012, to be highly probative in this case. Importantly, Dr. Jabbour's reports do not reflect that the Veteran's major depressive disorder is productive of symptomatology commensurate with a 100 percent rating. Notably, Dr. Jabbour's evaluations contain no evidence of 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; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Dr. Jabbour evaluated the Veteran on multiple occasions and therefore recorded the symptomatology that the Veteran was experiencing over a period of time. Because these records were generated with a view towards ascertaining the Veteran's then-state of physical fitness, they are akin to statements of diagnosis and treatment and the Board accords them increased probative value as the Veteran had a strong motive to accurately report his symptomatology in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Specifically, in an October 2007 record, Dr. Jabbour described the Veteran's thought processes as goal directed, within normal limits, and logical. Dr. Jabbour stated that the Veteran was able to relate "very well" with him during the evaluation. There was no looseness of associations or tangential thinking. The Veteran denied auditory or visual hallucinations, and there was no evidence of psychosis or delusions. He also denied any suicidal or homicidal ideations. Dr. Jabbour described the Veteran as alert and oriented and having "very good" insight and judgment. The Board recognizes that some of the Veteran's reports and some of the observations made by Dr. Jabbour could suggest a greater level of disability; however, none of these symptoms, even in combination with all of the relevant symptomatology, rise to the level of disability contemplated in a higher 100 percent rating. The Board observes that it was noted in an August 2009 record that the Veteran had "some death wishes over his weight." In November 2010, February 2011 and November 2011, Dr. Jabbour reported there was no suicidal ideation. Although this could be considered evidence of suicidal ideation, these thoughts were specifically attributed to his weight, not his service-connected disorder. In any event, "some death wishes" does not reflect that the Veteran is in "persistent danger of hurting self" as contemplated in the 100 percent criteria, and there is no persuasive evidence of record reflecting such. As an aside, the Board notes that the 70 percent rating contemplates suicidal ideation. Additionally, in a May 2010 report, Dr. Jabbour indicated that the Veteran appeared "very obese disheveled." One of the demonstrative symptoms of a 70 percent disability rating is "neglect of personal appearance and hygiene." Thus, the Veteran's disheveled appearance is clearly contemplated in the current 70 percent rating. There is no indication in Dr. Jabbour's records that the Veteran has been unable, even intermittently, to maintain minimal personal hygiene. Lastly, although the Veteran reported to Dr. Jabbour in May 2010 that he has no social life, in February 2012, Dr. Jabbour noted that the Veteran reported that his wife and family were very important to him. Such statements are not consistent with a finding that the Veteran has total social impairment. Additionally, in November 2007, Dr. Jabbour noted that the Veteran was trying to reconcile with his brother. Thus, Dr. Jabbour's reports reflect a disability picture that more nearly approximates the criteria for a 70 percent rating as opposed to a 100 percent rating. See 38 C.F.R. §§ 4.7, 4.130 Diagnostic Code 9434. The Board acknowledges that the results of the Veteran's initial VA PTSD examination in 2008 with Dr. Kathy Hedrick and a statement that the Veteran submitted in February 2008 reflect more severe social and occupational impairment and more severe symptomatology than reported by Dr. Jabbour. For example, the examiner wrote "paranoia noted, ideas of reference, [V]eteran extremely agitated, odd presentation with unusual mix of anger, paranoia, strong personality correlates noted[;] speech is tangential, forced, [V]eteran is threatening in nature with evaluator." The Veteran objectively presented as clean, neatly groomed, and appropriately dressed with rapid and pressured speech. He was oriented to person, place, and time. He had a hostile, suspicious, contemptuous, irritable, and aggressive attitude toward the examiner. His thought process was rambling and illogical with preoccupation with one or two topics. His judgment and insight were poor. The examiner indicated that the Veteran "reports knowing people are outside, 'don't ever find none but [I] know they are' (this is past hypervigilance and is to level of delusional thinking with paranoid ideation uncommon in [PTSD])." The Veteran denied a history of suicide attempts. In the statement he submitted, the Veteran reported that he had frequent auditory and visual hallucinations, including someone calling his name. He also stated he had severe concentration and memory problems and would frequently get lost while driving his car and could not remember what he "just read." The Veteran reported that he felt helpless at times and suicidal "sometimes." However, as noted above, the Veteran's expressed symptomatology during the 2008 examination was found by both Dr. H and Dr. W to be over exaggerated and over endorsed, which calls into question its validity. Accordingly, his psychological symptomatology as expressed during the 2008 examinations is afforded little to no probative value. Additionally, given the proximity in time to the conclusions by Dr. H and Dr. W that there was overexaggeration and overendorsement of psychological symptoms, the February 2008 statement is also afforded little probative value. The Board observes that the May 2012 examiner was unable to determine the extent of the effect of the major depressive disorder or borderline personality disorder on the Veteran's social/occupational impairment functioning and GAF without resorting to mere speculation. The Board may rely on a speculative opinion, provided that "the inability to render a requested opinion is adequately explained by the examiner or otherwise apparent in the Board's review of the evidence." Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). In this case, the examiner clearly explained why he was unable to determine the severity of the major depressive disorder and its impact on the Veteran's social and occupational functioning. Specifically, the examiner noted the evidence of symptom amplification and malingering, as explained above, during his evaluation of the Veteran and possibly during the February 2008 VA examination. The Board is also aware of the GAF scores provided by Dr. Jabbour (43) and the VA examiners (45 and 48). A GAF score between 41 and 50 is reflective of serious symptoms or any serious impairment in social/occupational functioning. Although these scores could encompass symptomology such as suicidal ideation and an inability to keep a job, such specific symptoms have not been attributed to the Veteran. Rather, evaluations reflecting serious symptoms and serious impairment in occupational and social functioning are completely contemplated by the assigned 70 percent rating. Regarding the extent of the Veteran's symptomatology, the May 2012 VA examiner concluded that the Veteran's report of prolonged periods of depressive symptoms, in which he wants to sleep all day, is tearful, and does not want to engage with others, was the result of his major depressive disorder. Such symptomatology is not suggestive of total occupational and social impairment. The Board is aware that the symptoms listed under the 100 percent evaluation are examples of the types and degrees of symptoms that would warrant that evaluation, and that the Veteran need not have all, or even any, of these particular symptoms in order to warrant a 100 percent evaluation. See Mauerhan, supra. However, the criteria described under the 100 percent evaluation indicate a more serious disability picture than shown during the appeal period for the reasons stated above. Mostly importantly, for the assignment of a 100 percent rating, total occupational and social impairment must be shown. Although there is evidence that the Veteran has not worked since 2007, there is no evidence that he is totally occupationally impaired due to his service-connected major depressive disorder alone. With regard to whether the Veteran is totally socially impaired, although he has reported interpersonal difficulties, and that his marriage has been "hot and cold," the evidence reflects that has been married for over ten years and has eight children, which is inconsistent with a finding that he is totally socially impaired. In summary, the Board concludes that the Veteran does not meet the criteria for the 100 percent evaluation for major depressive disorder at any point during the appeal. The Board finds that the Veteran does not have total occupational and social impairment as contemplated by the 100 percent evaluation. Accordingly, a 100 percent evaluation is not for application. 38 C.F.R. §§ 4.7, 4.130 Diagnostic Code 9434. B. Extraschedular Consideration The Board has also considered whether the Veteran is entitled to a referral for an extraschedular rating, which is a component of a claim for an increased rating under Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service (Director). Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. "[I]nitially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. The Court provided that "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Id. Turning to the threshold inquiry, the Board notes that the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9434, expressly contemplate varying degrees of occupational and social impairment due to a wide variety of symptoms, to include, e.g., thought process deficiencies, inability to maintain personal or work relationships, and an inability to adapt to stressful circumstances. In this case, even considering the nature of the psychological impairment demonstrated by the record, the rating criteria for psychiatric disorders reasonably describe the Veteran's disability level and symptomatology. For example, the Veteran's symptoms have been described as anxious, restless, tearful, disheveled, depressed mood, constricted and easily irritable. (The Board notes that it has used the symptoms reported by Dr. Jabbour because the Veteran seems to be more honest in reporting his symptoms to Dr. Jabbour than he is when reporting symptoms to VA.) The 70 percent evaluation contemplates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran's disability picture contemplates this level of severity. Additionally, the rating criteria provide for a higher rating for additional or more severe symptoms than currently shown by the evidence, i.e. when there is shown to be total occupational and social impairment. The Board has explained above why it finds that the Veteran's disability picture does not contemplate this level of severity. Consequently, the Board finds that referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service for consideration of an extraschedular evaluation for his disability under 38 C.F.R. § 3.321 is not warranted. C. Individual Unemployability For VA purposes, total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. The Veteran's service-connected disabilities are major depressive disorder, evaluated as 70 percent disabling, and residuals of L2 fracture, rated as 20 percent disabling. His combined evaluation is 80 percent. Thus, the Veteran meets the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a). The remaining question before the Board is whether the Veteran is unemployable by reason of his service-connected disabilities alone, taking into consideration his educational and occupational background, such that a TDIU may be assigned. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities are of such severity as to preclude substantially gainful employment. The reasons follow. The Veteran has asserted in statements and in medical records that he cannot work due to his service-connected back and/or mental disability. Specifically, during a July 2007 VA examination for his spine, the Veteran reported that he had two or three incapacitating episodes in the past year and quit work in 2007 because of his back. In October 2007, the Veteran reported to Dr. Jabbour that he had stopped working due to his psychiatric disorder and his inability to get along with others. At the February 2008 VA examination, the examiner referenced a record indicating that the Veteran was unable to work due to a back injury and that he was going to apply for Vocational Rehabilitation benefits to help him find a job with his back injury. The Veteran reported that he lost a job due to getting violent with a supervisor. He indicated that he had stopped working in 2007 because he could not get along with other people. The Veteran noted on his October 2008 VA Form 21-8940 for unemployability that his service-connected major depressive disorder prevented him from working. The Veteran stated he left his job in sales because traveling in a car, doing the paperwork, and interacting with customers was too stressful. The Veteran's SSA records reflect that he asserted that he was limited in his ability to work due to PTSD, a back condition, and sleep apnea. The Veteran added that these disorders limited his ability to work in that he could not concentrate, and could not deal with stress. The Veteran reported that he stopped working in July 2007 by "mutual agreement w[ith] employer because my performance was not what it should have been. [I] could no longer concentrate." In addition to working in sales, other evidence of record reflects that the Veteran has held employment as a bouncer, truck driver, and manager; in security; and at the post office. Although the Veteran has reported that he cannot work and has lost jobs as reflected above, the more probative evidence of record does not reflect that his service-connected disabilities are of such severity as to preclude substantially gainful employment. An October 2008 response from the Veteran's former employer from May 2004 to January 2007 reflected that he worked as a salesman. The reason the Veteran left this job was because he resigned. A December 2008 response from the Veteran's employer from November 2006 to March 2007 reflected that he worked in sales. Importantly, his employer indicated that he lost no time during the year preceding his last date of employment due to disability. No reason was given as to why he left this job. Although there is evidence that the Veteran may have difficulty working with others, concentrating, and dealing with stress, there is no credible evidence that he is precluded from employment, especially employment that is more solitary and low-stress than his previous work in sales. The Board observes that the Veteran has reported that he has either two or three years of college and that he has a long career history of working in sales. It is logical to infer from this information that the Veteran is well educated and has professional skills. The Board finds it significant that no medical provider has found the Veteran to be unemployable solely due to his service-connected disorders. In Dr. Jabbour's October 2007 evaluation, he noted that the Veteran reported a long history of numerous jobs, and the Veteran's report that he left most of them due to conflicts with his supervisor. What is missing from Dr. Jabbour's opinion is a finding that the Veteran was unemployable. The February 2008 and March 2008 VA examiners did not assess the ultimate question of unemployability. However, to the extent that the examiners noted the Veteran had a serious impairment with respect to his psychiatric disorder, the 70 percent evaluation contemplates such severe impairment. As further evidence of the Veteran's lack of credibility, in October 2007, he reported to Dr. Jabbour that he had three years of college. See October 2007 evaluation report. However, in the VA Form 21-8940, Veteran's Application for Increased Compensation Based Upon Unemployability, completed by the Veteran and received in July 2008, he reported having two years of college. See item # 21. When signing this document, the Veteran signed it under penalty of perjury. See Section IV (stating, "PENALTY: the law provides severe penalties which include fine or imprisonment or both for the willful submission of any statement or evidence of a material fact, knowing it to be false or for the fraudulent acceptance of any payment to which you are not entitled."). In the Veteran's SSA application, he reported having three years of college. See Disability Report - Adult - Form SSA-3368, Section 7. Education level can increase in time, but it does not decrease. Thus, the Board finds that the Veteran intentionally misrepresented his education level in the VA Form 21-8940, when he reported he had two years of college, when he had reported to Dr. Jabbour and SSA that he had three years of college. This further supports the Board's conclusion that the Veteran's statements lack credibility. Although there is evidence that the Veteran would have difficulty in a job that involved heavy lifting or lots of interaction with others, the evidence indicates that he could work in a job that involved minimal lifting and minimal interaction with people. Specifically, when the Veteran was evaluated for SSA disability benefits in August 2008, an examiner noted that because of his back disability, the Veteran would have difficulty in a job that required prolonged period of lifting heavy objects. The examiner observed that the Veteran's tolerance for walking long distances was moderately decreased because of low back pain, tolerance for standing was moderately decreased, ability to sit was moderately decreased, ability to lift and carry was moderately decreased, and ability to travel was moderately decreased because of the prolonged sitting involved. However, the Board finds it significant that the Veteran reported that he could work through his back pain and that is not what is keeping him from working; he is not working due to his emotional problems. The examiner summarized that for the Veteran to work at that point, he would need to do a job that required minimal interaction with other people. Thus, there is evidence from a medical professional that the Veteran would be able to obtain employment in a job that requires minimal interaction with other people. The Board is also aware that GAF scores ranging between 41 and 50 reflect serious occupational impairment. However, none of the examiners who reported GAF scores within that range stated specifically that the Veteran was unable to work because of the service-connected psychiatric disorder. Specifically, in the March 2008 addendum to the February 2008 examination, the examiner stated that the Veteran's psychiatric disorder caused the Veteran "severe" occupational and social impairment. The examiner did not say that the Veteran's psychiatric disorder precluded his ability to work. Again, a 70 percent evaluation contemplates severe occupational and social impairment. Moreover, the most recent medical evidence of record does not reflect that the Veteran cannot work due to his service-connected back disability. The Veteran underwent a VA examination for his back in May 2012. After reviewing the Veteran's history, performing a clinical examination, and reviewing the medical evidence, the examiner concluded that the Veteran was able to lift and carry about twenty-five pounds, was able to stand and walk for about six hours during an eight hour work day with an hourly break, had no limitation on pulling and pushing, could sit for six hours during an eight hour work day with an hourly break, but would not be able to do repetitive bending. The Veteran reported that he has low back pain, but no radiation of symptoms to his lower extremities or bowel or bladder dysfunction. He also had no difficulty walking, but did use a cane. The Veteran stated that flare-ups do not impact the function of his back. There was no functional loss with repetitive testing. Muscle strength testing was normal, deep tendon reflexes were normal, and sensory examination was normal, and straight leg rating was negative. There were no signs of radiculopathy or other neurologic abnormalities or intervertebral disc syndrome with incapacitating episodes. Additionally, the May 2012 VA examiner who evaluated the Veteran's major depressive disorder was unable to determine whether the Veteran's major depressive disorder alone, or in conjunction with his service-connected back disability, renders him unable to obtain or maintain a substantially gainful occupation. The examiner could not do so because of the clear and unmistakable evidence of symptom amplification/malingering difficulties noted during the evaluation, as discussed above. For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The Veteran's service-connected disabilities clearly result in impairment in his ability to work; after all, he has a combined evaluation of 80 percent. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). After considering the forgoing, the Board concludes that the preponderance of the evidence is against the claim. 38 C.F.R. §§ 3.655(b); 4.16. TDIU is therefore denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial evaluation in excess of 70 percent for major depressive disorder is denied. Entitlement to a TDIU is denied. ______________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs