Citation Nr: 1340865 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 08-09 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from May 1984 to August 1984 and from June 1986 to February 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2003 Regional Office (RO) in Indianapolis, Indiana and November 2006 RO in Columbia, South Carolina rating decisions, which respectively, granted entitlement to service connection for tinnitus and assigned a 10 percent rating, effective from September 15, 2003, and denied the Veteran's claim for a TDIU. In a November 2011 decision, the Board denied entitlement to a disability rating in excess of 10 percent for tinnitus and entitlement to a TDIU. The Veteran appealed the portion of the November 2011 Board decision which denied entitlement to a TDIU to the United States Court of Appeals for Veterans Claims (Court). In April 2013, the Court issued a memorandum decision setting aside the portion of the Board's November 2011 decision which denied entitlement to a TDIU, and remanded that claim to the Board for further proceedings consistent with the memorandum decision. The Veteran had a hearing before an RO representative in January 2009. A transcript of the hearing has been associated with the claims file. The Board notes the Veteran requested a hearing before a representative of the Board in his March 2008 substantive appeal form, but withdrew the hearing request in January 2009 and requested that the matter be sent directly to the Board for review. Therefore, the Board finds that there is no hearing request pending at this time. See 38 C.F.R. § 20.702(e) (2013). FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter in August 2006 fully satisfied the duty to notify provisions with respect to the TDIU claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. The Veteran's Vocational Rehabilitation assessment also is of record. To the extent that additional Vocational Rehabilitation records are not of record, the Board concludes that there would be no benefit to the Veteran in obtaining such records, as the conclusion in the March 2007 Vocational Rehabilitation assessment would have been based on any such records and the assessment found that the Veteran was unemployable due to issues associated by the medical professionals of record with his nonservice-connected personality disorder. In addition, records from the Social Security Administration (SSA) have been associated with the claims file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2009). The RO provided the Veteran appropriate VA examinations in October 2006, June 2009, and July 2009. The VA examination reports are thorough and supported by VA outpatient treatment records. The examinations discussed the clinical findings and the Veteran's reported history as necessary to determine the Veteran's entitlement to TDIU. The examinations also discussed the impact of the Veteran's disabilities on the Veteran's occupation and daily living. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The Board finds the examination reports to be thorough and supported by the other evidence of record. There is no rule as to how current an examination must be, and the Board concludes the examinations in this case are adequate upon which to base a decision in that they were performed by a neutral, skilled provider who accurately recited the Veteran's history and the examiner's resulting report provides the data required to appropriately rate the Veteran's disorders. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Entitlement to TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2013). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2013). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). In this case, the Board notes that the Veteran's service-connected disabilities are his 50 percent rating for posttraumatic stress disorder (PTSD), a 10 percent rating for tinnitus, a 10 percent rating for scar excision pilonidal cyst coccygeal area, and a noncompensable rating for bilateral hearing loss. The Veteran's combined disability rating is 60 percent. Therefore, the Veteran's service-connected disabilities do not meet the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a). Nevertheless, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. §4.16(b). See Bowling, 15 Vet. App. at 1. For a Veteran to prevail on a claim for entitlement to TDIU, 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; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran has reported that his only employment since 2003 was working for about a week and a half at Taco Bell in 2008. The Veteran's previous employment from 2003 and earlier was in maintenance at two manufacturing facilities, as a pizza delivery driver, in newspaper delivery, as a clerk in a convenience store, and as a carpenter at a manufacturing facility. The Veteran has indicated that he attended school through the twelfth grade. Having reviewed the claims file, the Board finds no evidence of record suggesting that the Veteran's case is outside the norm requiring extraschedular consideration. The Veteran has contended that he should be awarded entitlement to unemployability, as his service-connected PTSD prevents him from working due to his hypervigilance and difficulties around crowds and tinnitus because it prevents him from hearing out of his left ear. As the Veteran contends that only his PTSD and tinnitus prevent him from working, the Board will confine its analysis solely to consideration of these two disabilities in evaluating his TDIU claim. In August 2001 the Veteran underwent a private psychiatric evaluation during incarceration for child molestation involving his step-daughter and, possibly, his daughter. At that time, the Veteran reported that he did not remember being physically abused as a child, but remembered that he was physically abusive to others and enjoyed getting in fights. The examiner gave Axis I diagnoses of sexual disorder not otherwise specified, PTSD, and Alcohol abuse, in remission due to incarceration. The examiner also gave an Axis II diagnosis of personality disorder not otherwise specified with passive aggressive and antisocial features. In early September 2003, the Veteran underwent a procedure for excision of a pilonidal cyst. Several days after the surgery, the Veteran was afforded a September 2003 VA psychiatric examination, during which the Veteran indicated that although he was still employed in his maintenance job that he felt like quitting every day after he had been there for 5 minutes. However, he kept showing up for work, other than on about 20 missed days since April 2003 when he called in because he feared he would assault a fellow employee. The Veteran discussed prior employment and that he had left a janitorial job because his employer was unable to pay, a job as a pump technician due to lack of work, as a security job due to punching his supervisor, and two periods of employment as a maintenance technician due to incarceration for a child molestation in the first instance and parole violation for passing bad checks in the second. In addition, he had left a job in a factory making recreational vehicles after getting in a fight with a fellow employee. The examiner diagnosed PTSD and antisocial personality disorder. As to the effects on employment, the examiner noted that, "The antisocial personality disorder seems to account for a severe exacerbation of the antipathy [the Veteran] feels towards so many of the people to whom he is exposed... [The Veteran] is truly hard-put to function effectively in the work place, and this appears to be a result of his [PTSD] severely exacerbated by his antisocial personality disorder." Two weeks after his surgery, the Veteran's pilonidal cyst had not healed and he stated that he needed to be released to return to work as a maintenance technician. (Subsequent records show that the Veteran's scar from the pilonidal cyst is well healed.) The record indicates that he was let go by his employer at that time; however, another September 2003 VA treatment record indicated that the Veteran had a job interview about which he felt confident. The Veteran was afforded a VA psychiatric examination in October 2005. The Veteran stated that he had last worked in September 2003 at a manufacturing facility. The examiner discussed two past hospitalizations, in July 2005 and October 2005, for mental problems. During his first hospitalization the Veteran reported hallucinations telling him to go on a killing spree that he alleviated by brutally beating innocent people chosen at random. Significantly, the hospital record for the July 2005 hospitalization reflects the treatment provider's opinion that the Veteran was very manipulative. The Veteran also had reported five jail terms assaulting others, in addition to his incarceration for molesting his children. He was diagnosed with impulse control disorder, PTSD by history, and personality disorder not otherwise specified. The VA examination occurred during the Veteran's second hospitalization. The examiner noted that the Veteran's reports of auditory hallucinations were inconsistent with a typical person's report of the same. In addition, the examiner noted reports of mild to moderate anxiety, antisocial tendencies, preference to be away from people, a tendency to have physical conflict, and occasional thoughts in the past of hurting himself. The Veteran noted that he had submitted multiple job applications, but had been rejected, the Veteran believed because he was a convicted felon. The examiner opined that the Veteran's psychosocial functioning was impaired primarily due to his severe personality disorder with marked antisocial traits. The examiner also noted the Veteran's reports of being unable to find employment due to his felony convictions. The examiner diagnosed mood disorder not otherwise specified, PTSD, and antisocial personality disorder and assigned a GAF score of 60 for the antisocial personality disorder, 63 for the PTSD, and 62 for the mood disorder not otherwise specified. The examiner noted that the Veteran's primary diagnoses were antisocial personality disorder and mood disorder not otherwise specified. In addition, the Veteran did have PTSD, but his symptoms in that regard were primarily unchanged. The examiner concluded, "It is primarily his other psychiatric problems such as mood disturbance with accompanying voices telling him to harm others, as well as his history of antisocial acts, including sexual molestation of his daughter leading to legal problems, [that] have seriously affected his quality of life. For example, he has stated that he cannot find a job due to this felony conviction, although he applies 'time and time again' for work." During a VA general examination in October 2006, the Veteran reported that he had not worked since 2003 because of PTSD and problems with his lower back. In October 2006, he also was afforded another VA examination. The Veteran had again been hospitalized for psychiatric problems in November to December 2005. The examiner indicated that the Veteran's psychiatric symptoms appeared of mild severity. The Veteran noted that he had not worked since 2003 and that while he had since applied for multiple jobs, he had not been selected due to conviction for felony child molestation. The examiner diagnosed mood disorder not otherwise specified, PTSD, and antisocial personality disorder. His overall GAF score would be 62. The examiner noted that the Veteran's antisocial personality disorder was his primary disability, which was assigned a GAF score of 62. His PTSD was assigned a GAF score of 70 and his mood disorder a 67. The examiner noted that the Veteran's PTSD symptoms did not appear to have worsened and that "It is well known that a diagnosis of personality disorder can lead to severe disruption in a person's mood functioning, interpersonal functioning, and occupational functioning." Moreover, during this examination, the Veteran "reported only minimal psychosocial dysfunction that could be attributed to his [PTSD] symptoms. For example, he continues to be unemployed. However, this is primarily attributed to his status as a felony child molester who finds it difficult to find work." VA treatment records indicate hospitalization for the Veteran's psychiatric problems in March 2008, April 2008, and November 2008. During these periods, the Veteran reported auditory hallucinations with voices telling him to kill, homicidal ideation, and suicidal ideation. Significantly, an April 2008 discharge summary noted, "In review of the veteran's past records, the treatment team staff became concerned that the veteran's symptoms had a staged component with a significant element of secondary gain suspected. It was noted, during the course of the hospitalization that some of the veteran's answers were carefully nuanced and that expressions of hearing voices were not convincing since there was no evidence of any thought blocking or any apparent lapse in his cognitive capacity." A March 2007 Vocational Rehabilitation assessment determined that achievement of a vocational goal for the Veteran was "not currently feasible." Specifically, the assessment noted, "the veteran has problems with anger control and will need counseling; the veteran has had [a] substantial period of unemployment and will need work hardening, supported employment and job coaching; the veteran will not be employable until the personal adjustment issues are resolved." The assessment also indicated that "[t]he veteran's service-connected disability/disabilities contribute in substantial part to the impairment to employability." In February 2009, the Veteran was evaluated for a tremor affecting both upper extremities. The Veteran did not feel that it was related to his psychotropic medication, but his wife indicated that it may have worsened since his last medication changes. Following examination, the VA psychiatrist diagnosed essential tremor versus iatrogenic tremor from multiple psychotropic medications. The Veteran was afforded a VA audiological examination in June 2009. The Veteran's hearing was noted to be excellent bilaterally in quiet circumstances. In July 2009, the Veteran was afforded another VA psychiatric examination. The Veteran reported auditory hallucinations, irritability around others, and mood swings. He also noted problems with crowds, loud noises, and people coming up behind him. The Veteran stated that he had worked for one and a half weeks in July or August 2008 at Taco Bell and that he was fired over a "discrepancy" in his application regarding his past felony conviction. The Veteran stated that he had not looked for a job thereafter because due to his VA and SSA payments he did not have to work. He indicated that he would like to work in a situation where it was not too strenuous and there were not many people. He claimed that Vocational Rehabilitation had found him unemployable in 2002, but did not recall the basis for the determination. That said, the Veteran reported that he did okay while at Taco Bell and did not have problems with his supervisors or fellow employees. The examiner indicated, "It seems apparent that if it were not for the issues with his felony, he would still have this job. His PTSD symptoms did not interfere large[l]y with functioning in this setting." The examiner diagnosed, in relevant part, mood disorder not otherwise specified and PTSD in partial remission. The examiner noted that the mood disorder included problems with mood swings, irritability, depressed mood, and command auditory hallucinations and that his mood disorder "probably accounts for most of his disability. PTSD symptoms are apparent but not disabling. Vet was able to function in a job for 1.5 weeks before being fired due to his felony history. He currently does no work because he ha[s] income from VA and Social Security and has been labeled 'unemployable' by Voc Rehab (no specific reason was told to him but it is likely due to his felony history)." Thus, the Board finds that the weight of the competent and probative evidence of record demonstrates that the primary basis for the Veteran's unemployability is his nonservice-connected mood and/or personality disorders and their repercussions, to include as due to his felony conviction for child molestation. As recently as July or August 2008, the Veteran was able to work for a week and a half at Taco Bell without associated problems with his supervisors, fellow employees, or otherwise. He lost that job due to his felony conviction and not due to problems associated with his PTSD symptoms and/or tinnitus. The Board also finds it significant that the Veteran lost prior jobs due to his incarceration for child molestation and passing bad checks. The Board also notes that some measure of his employment difficulties is associated with interpersonal issues with others, but again these problems explicitly have been attributed to his nonservice-connected mood and/or personality disorders and not to his service-connected PTSD. As noted by multiple VA examiners, the Veteran's PTSD symptoms are mild in nature, to the point that his most recent VA examiner indicated that his PTSD was in partial remission, and that his psychosocial problems were attributable to his primary diagnosis - the personality or mood disorder. The Veteran's childhood history of physically assaulting others suggests that problems with violence towards others, which was the purported cause of more than one of the Veteran's job terminations, was a problem of longstanding that clearly pre-dated his military service. No medical professional has opined or suggested that this preexisting personality or mood disorder was aggravated or otherwise was subject to a superimposed disability as a result of the Veteran's military service or was in any other way caused or aggravated by the Veteran's military service. The Board has considered the Veteran's reports of tremors and the medical indication that they may be due to psychotropic medication, presumably including that for his service-connected PTSD. While the Veteran asserts that these tremors prevent him from writing, the Board notes that the Veteran's past work history does not indicate previous employment requiring extensive writing. Thus, the evidence shows that to the extent the Veteran has difficulty writing due to medication for his PTSD there are myriad job opportunities for which the Veteran is qualified that would not require a significant amount of writing. The Board acknowledges the Veteran's contention that he was terminated from his job with the manufacturing company in September 2003 because he did not return to work following surgery on his service-connected pilonidal cyst. As noted, however, the surgical scar has since fully healed and the Veteran does not claim that the scar is a continuing cause of his unemployment. The Board acknowledges that there is some evidence from a medical professional which suggests that the Veteran's unemployment status is attributed to his PTSD or tinnitus. As noted above, the September 2003 VA examiner opined that "The antisocial personality disorder seems to account for a severe exacerbation of the antipathy [the Veteran] feels towards so many of the people to whom he is exposed... [The Veteran] is truly hard-put to function effectively in the work place, and this appears to be a result of his [PTSD] severely exacerbated by his antisocial personality disorder." This evidence could be interpreted to mean that the Veteran's unemployability is due to his PTSD. However, the Board additionally notes that October 2005, October 2006, and July 2009 VA examiners opined that the Veteran's psychosocial functioning was impaired primarily due to his personality disorder. This evidence suggests that the Veteran's unemployability is primarily due to a non-service connected cause. While all of the VA examiners appear to have reviewed the claims file, interviewed the Veteran, and performed necessary testing, only one of them appears to have attributed the Veteran's unemployability primarily to a service-connected cause. As such, the Board finds that the weight of the evidence from medical professionals indicates that the Veteran's unemployability is primarily due to a non-service related cause. The March 2007 vocational rehabilitation assessment reflects that the Veteran's employability was partially impaired by a "maladaptive behavioral pattern caused by SC'd psychiatric disability," and "[t]he veteran's service-connected disability/disabilities contribute in substantial part to the impairment to employability." As such, it could be interpreted to support the Veteran's claim. However, in the discussion of the impairments to the Veteran's employability, the assessor included numerous non-service connected disabilities. Significantly, a careful examination of the report reveals that no differentiation is made between the Veteran's service-connected PTSD and his non-service connected personality disorder. As discussed above, the weight of the medical evidence indicates that the Veteran's non-service connected personality disorder is the primary cause for the Veteran's unemployability. As the March 2007 vocational rehabilitee assessment does not differentiate between the Veteran's service-connected PTSD and non-service connected personality disorder, the Board finds its probative value to be limited and outweighed by the medical evidence of record. Further, the July 2007 Social Security disability psychiatric assessment finding reflects marked limitation in the Veteran's activities of daily living and social functioning due to his PTSD. However, this assessment does not speak to occupational impairment. Conversely, the October 2005, October 2006, and July 2009 VA examiners all addressed the Veteran's occupational impairment, and as such, the Board finds the October 2005, October 2006, and July 2009 VA examination reports to be of greater probative weight than the July 2007 Social Security disability psychiatric assessment. The Board acknowledges the Veteran's contention that his PTSD symptoms and hearing problems render him unemployable. However, the Board places more probative weight on the opinions of the multiple VA health care specialists discussed above, who considered the Veteran's assertion, but explained with thorough rationale why the Veteran's nonservice-connected mood and/or personality disorders are the primary factors affecting his employment status. The Board additionally recognizes that the hospital record for the Veteran's July 2005 hospitalization reflects the treatment provider's opinion that the Veteran was very manipulative, and an April 2008 hospital discharge summary noted, "In review of the veteran's past records, the treatment team staff became concerned that the veteran's symptoms had a staged component with a significant element of secondary gain suspected. It was noted, during the course of the hospitalization that some of the veteran's answers were carefully nuanced and that expressions of hearing voices were not convincing since there was no evidence of any thought blocking or any apparent lapse in his cognitive capacity." This evidence indicates that the Veteran's assertions are not credible, as prior treatment providers have found the Veteran to be manipulative. Furthermore, in Van Hoose, the Court noted, The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is 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 the veteran can find employment. See 38 C.F.R. § 4.16(a) (1992). Van Hoose, 4 Vet. App. at 363. In this case, there is simply no evidence of unusual or exceptional circumstances to warrant referral for extra-schedular consideration of a total disability rating based on the Veteran's service-connected disabilities. Given the above, while the Board does not doubt that the Veteran's service-connected disabilities have some effect on his employability, the preponderance of the evidence does not support his contention that his service-connected disabilities are of such severity as to preclude his participation in any form of substantially gainful employment. Multiple VA examiners have considered the Veteran's PTSD symptoms and concluded that these problems were minor in nature and that his primary disability affecting employability was his nonservice-connected personality or mood disorders, as evidenced by his difficulty obtaining employment due to his felony conviction for child molestation. In addition, while the Board acknowledges that no VA examiner has opined as to the effect of the Veteran's left ear tinnitus has on his employability, the Board finds it highly significant that the last VA examination included speech discrimination testing of 100 percent in the left ear and the examiner specifically noted excellent speech discrimination in quiet settings. Thus, the Veteran's tinnitus certainly would not preclude employment in quiet environments, of which there are numerous opportunities. Accordingly, in the absence of any evidence of unusual or exceptional circumstances beyond what is contemplated by the assigned schedular disability evaluations, the preponderance of the evidence is against the Veteran's claim that he is precluded from securing substantially gainful employment solely by reason of his service-connected disabilities or that he is incapable of performing the mental and physical acts required by employment due solely to his service-connected disabilities, even when his disabilities are assessed in the context of subjective factors such as his occupational background and level of education. The Board concludes, therefore, that a total disability rating for compensation purposes based on individual unemployability is not warranted. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs