Citation Nr: 1333706 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 11-11 485 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUES 1. Entitlement to an increased disability evaluation for the service-connected depression with anxiety features, currently evaluated as 50 percent disabling. 2. Entitlement to a total rating based on individual unemployability (TDIU) by reason of service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H.J. Baucom, Counsel INTRODUCTION The Veteran had active service from December 1995 to November 1996. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the RO. In September 2012, the Veteran submitted a Motion to Advance on the Docket. In November 2012, the Board granted the Veteran's motion. The Board has reviewed both the Veteran's physical claims files and his 'Virtual VA' file so as to insure a total review of the evidence. In December 2012 the Board remanded the claims for further development which has been completed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The symptoms and overall level of impairment caused by the service-connected depression with anxiety is not shown to be productive of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. 2. The Veteran has been granted service connection for depression with anxiety (rated as 50 percent disabling) and residuals of fractured right fifth metatarsal (rated as 10 percent); his combined evaluation of 60 percent does not meet the schedular requirements for a TDIU rating. 3. The service-connected depression with anxiety and the residuals of fractured right fifth metatarsal, alone, are not shown to preclude the Veteran from securing and following all forms of substantially gainful employment consistent with his educational and occupational background. CONCLUSIONS OF LAW 1. The criteria for the assignment of an increased rating of 50 percent for the service-connected depression with anxiety have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.7, 4.130 including Diagnostic Code 9434 (2013). 2. The criteria for the assignment of a TDIU rating, to include on an extraschedular basis, are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a 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) (2013). A January 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in January 2009, December 2009 and June 2013; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations were adequate as the examiners evaluated the Veteran's current disability level and provided findings to allow for proper application of the rating criteria. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). All of the evidence in the Veteran's claims file has been thoroughly reviewed. The analysis in this decision focuses on salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Increased Rating In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran's depression and anxiety is rated under 38 C.F.R. § 4.130, Diagnostic Code 9434. Psychiatric disabilities are evaluated under a general rating formula for mental disorders. All psychiatric disabilities are evaluated together regardless of the diagnoses. Under the general rating formula, a 30 percent rating is warranted for 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). A disability rating of 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. A disability rating of 70 percent is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is assigned when the condition 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. 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 Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV); see also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). A GAF score between 31 and 40 is indicative of some impairment in reality resting or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score between 41 and 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job). Id. A GAF score between 51 and 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 peers or coworkers). Id. A GAF score between 61 and 70 is indicative of mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, but generally functioning pretty well, has some meaningful interpersonal relationships. Id. In January 2009, the Veteran filed a claim for an increased rating for his psychiatric disorder. Three VA examinations were conducted during the time period on appeal, in January 2009, December 2009 and June 2013. In connection with the January 2009 VA examination, in reviewing the records, the examiner noted that the Veteran had consistently presented with depression with anxious features over the last six months. He reported that he was currently employed and that employment was good for him, but he had conflicts with people. The examiner noted that he had difficulty in interpersonal communication. The Veteran reported being divorced and seeing his son every other weekend. He reported binge drinking on the weekends, but did not think this was problematic. He reported having moderate symptoms of depression every day. His social functioning was adequate, and he did spend time off from work talking with friends. He enjoyed the time he spends with his son. He was not currently in a relationship, but dated. He was employed full time but the examiner noted his performance appraisals. The Veteran reported that interpersonal psychotherapy and medications had been helpful, but had not made him totally better. Subjectively, the examiner observed that the Veteran was demoralized by his symptoms. Upon examination, the Veteran was noted to be pleasant and cooperative. He denied having any impairment in thought process or communication, delusions or hallucinations, or inappropriate behaviors. He denied suicidal or homicidal thoughts, ideation, plan or intent. The Veteran was noted to be clean, groomed and dressed casually. He was oriented to person, place and time. The Veteran did report short term memory loss. He admitted to getting too distracted and nervous and not remembering things. The Veteran denied having obsessive or ritualistic behaviors. The rate and flow of speech were within normal limits. No clear panic attacks were reported. The Veteran identified with the criteria of depression and anxiety. There was no clearly defined impulse control and no sleep impairment. The examiner diagnosed depression with a GAF of 60. The VA examiner opined that his symptoms caused reduced reliability and productivity and directed attention to review his work performance records. His social functioning and family role functioning were quite preserved, and his most problematic aspects were occupational functioning. At the December 2009 examination, the Veteran reported having problems with social interactions, depression and sporadic thinking. He reported not being in counseling since August 2009. He lived alone with his dog, saw his son every other weekend and was not in a relationship. He stated that he was not working and that his last job ended in August 2009 after two years when he resigned after having difficulty with coworkers. The Veteran reported a history of alcohol abuse and currently smoking marijuana daily, smoking about two bowls daily every night for two years. Upon examination, the Veteran's behavior was anxious; his speech was normal; his affect was appropriate to his mood. There was no indication of depersonalization, derealization, hallucinations or illusions. His thought processes were circumstantial. There were no preoccupations, obsessions or delusions. The Veteran reported having suicidal ideation of a passive nature, but no homicidal ideation. There were mild short term memory problems, but his long term memory was intact. Common sense, reasoning and judgment and moral ethical thinking were within normal limits. He rated himself on a scale as 5/10 for depression and 7/10 for anxiety, but his temperament was observed to be calm. The Veteran handled his own funds, and the examiner found him competent to manage his VA benefits. The examiner diagnosed depressive disorder, NOS, cannabis dependence with a GAF of 70. The VA examiner explained that the GAF score was mild because the Veteran did have some problems occupationally, but was generally functioning satisfactorily. He had some meaningful interpersonal relationships, noting that he just had gone on a ski trip with his friend. The Veteran reported that, when he was working, he was a good worker and would miss only one day of work a month due to emotional problems. The Veteran watched TV, took his dog to the park, and did his own cooking, cleaning and grocery shopping. His hobbies included mountain biking, skiing, making model planes and rockets. He had friends and saw family on occasion. The examiner found that his mental disorder symptoms were transient and mild with decreased work efficiency and an inability to perform occupational tasks only during periods of significant stress. The examiner found that the Veteran did not have any functional limitations in terms of mental health issues. In connection with a June 2013 VA examination, the examiner reviewed the Veteran's mental health history, noting he had had individual counseling from May 2010 to August 2010, but his treatment had been chaotic and had been seen at three different VA locations. The Veteran reported the following symptoms: frustration, anxiety and depression, inability to communicate with people, and anger. He reported his weekly counseling sessions were "a patch" and nothing more. The Veteran reported that the medication made him not as desperate as he had been. He reported drinking alcohol only once every three months, and then drinking a six pack. The Veteran reported daily cannabis use of a bowl every hour beginning at 3 pm. Upon examination, the Veteran's appearance, behavior and speech were noted to be normal. His thought process was goal directed. His thought content had no obsessions, delusions, suicidal ideation or homicidal ideations, but he was preoccupied with his current situation. He was oriented and had average intelligence, mild problems with attention and concentration, low insight, and common sense reasoning and judgment that depended on his cannabis use. He reported having depression and anxiety most of the time, even with medication. The VA examiner identified the Veteran's symptoms as depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The Veteran asked for a fiduciary because he was always late on his bill paying and did not remember when his bills were due. He reported that he was a good worker when he worked. He did all his own household chores, had one close friend, stayed in touch with his sister, had no hobbies, got angry when he drove, was not currently looking for work because he had trouble handling the one job he had one day a week because he felt overwhelmed. He spends his days watching TV and taking his dog for walks. The VA examiner found the Veteran's mental health functioning to be complicated because he smoked cannabis daily which exacerbated all his other psychiatric symptoms, plus it made him lethargic and decreased all of his motivation to find work. It also decreased his threshold for normal stresses in life thus feeling overwhelmed by the slightest thing. The VA examiner found that the Veteran could do skilled or unskilled part time work or full time work that was low pressure in terms of productivity. He worked best alone and should not interface with the public. He would do best with a supervisor who was sympathetic and knowledgeable about his psychiatric condition. He needed to be on his medication, and it would be ideal if the VA would send him to an inpatient drug rehabilitation facility. The examiner found that working part time to full time would be therapeutic to the Veteran and that making him unemployable would increase his mental illness, noting that he needed to "detox" and undergo necessary treatment The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactory. The Veteran had been receiving psychiatric treatment through VA for his service-connected depression and anxiety. In September 2009, the Veteran was seen for a medication review for treatment of depression and anxiety. His speech was clear and fluent; his mood was anxious and somewhat depressed related to situational factors. His affect was congruent with mood and thoughts were organized. There was no psychosis. He denied having suicidal or homicidal thinking or plans. He reported attending school to work on his BA. In December 2009, the Veteran was enrolled full time in bio-tech program at a university. In June 2011, the Veteran requested to resume therapy. In a November 2011 treatment visit, the Veteran was assessed as anxious and depressed. However, it was noted that he was being successful in his school program (for the most part) and continued to seek out help and get support as he needed it. The provider noted that the Veteran seemed fixated on disability issues, mostly because he was struggling so much with money, which seemed to be inconsistent with his pursuit of a career. In September 2012, a suicide risk assessment was done after the Veteran called the hotline. He denied having suicidal ideation or plan. He reported not having a job but participating in vocational rehabilitation through VA and having a certificate in biotechnology. The Veteran reported dropping out of therapy with VA, but he wanting to engage again. The next day the Veteran reported feeling overwhelmed, mostly by financial obligations and limited support network. He wanted to return to treatment, but was not committed to sobriety at the time. At a June 2013 VA examination, the Veteran requested a fiduciary to assist him, reporting that he had difficulty remembering when his bills were due. Based upon the Veteran's statements the examiner found him not competent to manage his financial affairs. On July 1, 2013 the RO issued a rating decision finding that the Veteran was not competent to handle disbursement of funds. However, on July 3, 2013, a field examination found that the Veteran had full capacity to handle funds and did not require the services of a fiduciary, noting that the Veteran was fully aware of his financial affairs. The Veteran reported watching TV, working full time, working out at gym and spending time with his son every other weekend. The evidence of record does not show that the service-connected disability is productive of symptomatology and overall impairment that meets the criteria for a 70 percent rating or higher at any point during the period of the appeal. The Veteran has symptoms of depressed mood, anxiety, suspiciousness, and mild memory loss that are reasonably addressed by the currently assigned 50 percent rating. The Veteran was observed to be tangential at times and hyperverbal when he was anxious. The Veteran also had reported having memory impairment, i.e. forgetting to pay bills, and difficulty establishing effective work and social relationships. However, these manifestations do not meet the criteria for a 70 percent rating. There is no showing of occupational and social impairment with deficiencies in most areas. On one occasion, at the December 2009 VA examination, the Veteran did report having suicidal ideation of a passive nature; however, the examiner at that time assigned a GAF score of 70 with an explanation that his condition was mild and that he was generally functioning satisfactorily. The Veteran's symptoms include depressed mood, anxiety, mild memory loss, anger, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. The Veteran contends that the December 2008 performance review should been given more consideration in his evaluation. The Veteran's work performance review has been considered; however, it does not have as much weight as the medical treatment and evaluations of record. The report only further demonstrates that the Veteran has difficulty getting along with people at work, symptoms which are already of record. The Veteran also contends that he is entitled to a higher rating as he has been found to be incompetent. As discussed, the Veteran's request for a fiduciary to assist him in paying bills on time, and the RO's finding that he was incompetent to handle funds is not the same as a finding of overall complete incompetence due to his mental disorder. Furthermore, after a field examination, the Veteran was found to be competent to handle his funds and was assigned to be his own fiduciary. Accordingly, on this record, the service-connected psychiatric disability is not shown to meet the criteria for a rating higher than 50 percent during the period of the appeal. Extraschedular Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The manifestations of the service-connected disability, to include the identified occupational impairment, are contemplated by the schedular criteria. There is no showing of an exceptional or unusual disability picture that would obviate the application of the rating schedule. Accordingly, the Board has determined that referral of this case for extraschedular consideration is not warranted. TDIU Under the applicable criteria, a total compensation rating based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In addition, in the case of a Veteran who is unemployable by reason of service-connected disabilities, but who fails to meet these schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). The Veteran is service connected for depression, rated at 50 percent, and residuals fractured right fifth metatarsal, rated at 10 percent. To the extent that his combined evaluation is 60 percent, he does not meet the schedular requirements for assignment of a TDIU rating. 38 C.F.R. § 4.16(a). A total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities (pursuant to 38 C.F.R. § 4.16(b)). Consideration of whether the Veteran is unemployable is still necessary in this case. On review of the entire claims file, the weight of the evidence shows that the service-connected disabilities alone are not so disabling as to preclude the Veteran from securing and following all forms of substantially gainful employment consistent with his educational background and work experience. The Veteran has had held various employment positions. In January 2009, he was fully employed, but reported resigning from his job in August 2009 as he had difficulty with coworkers. However, through vocational rehabilitation, he enrolled in school in September 2009 and was working on a degree. The Veteran's VA vocational rehabilitation file is part of the claims file. His initial plan was to begin training in August 2009 and complete training in June 2012. In July 2010, the Veteran was doing well academically, but poor financially. In February 2011, he was still having financial struggles and relapsed with marijuana. In June 2011, he requested to change his studies, reporting he was in treatment for anxiety and using marijuana again. In January 2012, the Veteran started work study, but was largely inconsistent and failed to report on several occasions without notice. He was struggling academically. In July 2012, the Veteran was placed on academic probation and a referral was made for direct employment assistance for part time work. In August 2012, he withdrew from school. In late 2012, the Veteran got a position as a medical device tester, but by January 2013 he had been let go after he reported walking away from the job site to attend a VA medical appointment without notifying his employer. In January 2013, the Veteran began work therapy (CWT TWE) and appeared to be adjusting well, but by April 2013, he had been discharged as the Veteran had not demonstrated the ability to consistently report to work as scheduled without excessive absences and was not medically stable for his environment. At the time, the Veteran again admitted to using marijuana. In June 2013, a Vocational Rehabilitation panel agreed with the discharge from CWT TWE program in that the Veteran was not capable of competitive employment. The Veteran was recommended for inpatient treatment. At a June 2013 meeting, he appeared more interested in obtaining individual unemployability(IU) and questioned how a finding of infeasible for employment would help him for IU. It appeared that his goal was not employment, but obtaining a decision of IU. In a phone call later the Veteran inquired whether he had been found infeasible as he wanted to move on with a finding of IU. He has no immediate plans for employment. The medical examinations found there to be no impediment to employment due to the service connected depression with anxiety. The December 2009 VA examiner found that the Veteran did not have any functional limitations in terms of mental health issues. At that examination, the Veteran reported smoking marijuana daily for the past two years and continued to do so. The June 2013 VA examiner found that the Veteran could do skilled or unskilled part time to full time work that was low pressure in terms of productivity, noting that he worked best alone and should not interface with the public. The examiner added that the Veteran's marijuana use was causing him to feel overwhelmed by a one day a week job and that working more either part time to full time would be therapeutic for the Veteran. At the July 2013 fiduciary field examination, the Veteran reported that he was fully employed. The provisions of 38 C.F.R. § 4.16(b) applies only to the case of a Veterans who is found to be unemployable by reason of their service-connected disabilities. As the Board finds that the Veteran is not unemployable, referral is not required. ORDER An increased rating for the service-connected depression with anxiety features, greater than 50 percent disabling, is denied. A total rating based on individual unemployability (TDIU) by reason of service-connected disability is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs