Citation Nr: 1615081 Decision Date: 04/13/16 Archive Date: 04/26/16 DOCKET NO. 08-29 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial disability rating, in excess of 30 percent, for cognitive impairment as of August 27, 2012, as a residual of cerebrovascular disease. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to September 17, 2013. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to May 1966. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in San Juan, the Commonwealth of Puerto Rico (RO). As an initial matter, the Board will discuss the relevant procedural history of the appeal. In a March 2008 rating decision, the RO granted service connection for cerebrovascular disease, effective November 1, 2007. The Veteran appealed the assigned rating. In an August 2012 decision, the Board granted a higher initial 10 percent rating for cerebrovascular disease from November 1, 2007 to April 2, 2008, and denied a rating in excess of 10 percent from April 2, 2008 based on residual dizziness. The Board also remanded the appeal to determine whether separate ratings were warranted for any identified residuals of cerebrovascular disease other than dizziness. In a January 2013 rating decision, the Agency or Original Jurisdiction (AOJ) granted service connection for vascular dementia and assigned a 0 percent, noncompensible, rating effective August 27, 2012. The Veteran did not appeal the January 2013 rating decision. In August 2013, the Board noted that the grant of service connection for vascular dementia satisfied the Veteran's, then, pending appeal for posttraumatic stress disorder or other mental illness, consistent with an April 2013 statement from the Veteran's representative, and this was deemed to be a full grant of the benefit sought on appeal. The issues of entitlement to service connection for migraine headaches, to include as secondary to cerebrovascular disease, and entitlement to an initial rating, in excess of 10 percent, for residuals of cerebrovascular accident, were remanded so that the Veteran could be afforded updated VA examinations to address the etiology of his migraine headaches and to assess the severity of cerebrovascular disease and its residuals. In November 2013, the RO granted service connection for migraine headaches, secondary to cerebrovascular disease. The Veteran did not appeal the assigned rating. In September 2014, the RO granted an initial 30 percent rating for cognitive impairment (previously rated as vascular dementia), effective August 27, 2012. The RO also discontinued the 10 percent rating for cerebrovascular disease, effective April 2, 2008, in favor of a rating based on residual dizziness, consistent with the Board's August 2012 decision. In a November 2014 rating decision, the RO granted a TDIU, effective the date of the Veteran's June 2014 claim for a TDIU. The Veteran did not appeal this decision. As noted in the April 2015 Board remand, because the Board granted a higher initial 10 percent rating for cerebrovascular disease and denied a rating in excess of 10 percent for residual dizziness, this issue is no longer before the Board. However, as the Board remanded the matter of whether the Veteran was entitled to a separate rating for other cerebrovascular disease residuals in August 2012, the issue of entitlement to higher initial rating for cognitive impairment was added to the appeal as a downstream issue in April 2015. Additionally, while the RO granted a TDIU, effective June 9, 2014, the Board found, in April 2015, that an earlier claim for a TDIU was reasonably raised in the context of the appeal for a higher initial rating for cognitive impairment, specifically, by a September 2013 VA examination. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation); see also VAOPGCPREC 6-96 (stating that the question of TDIU entitlement may be considered as a component of an appealed increased rating claim if the TDIU claim is based solely upon the disability or disabilities which are the subject of the increased rating claim.). In October 2015, the AOJ granted a TDIU from effective September 17, 2013. Because the issue of entitlement to a TDIU prior to June 9, 2014 was added to the Veteran's appeal as part of the present appeal for a higher initial rating for cognitive impairment, the relevant appeal period is from August 27, 2012. Thus, the Board finds that this was only a partial grant of the benefits of sought on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993); Rice, 22 Vet. App. at 453. The Board finds that the issue of entitlement to a TDIU prior to September 17, 2013 remains pending on appeal. The Board finds that the AOJ substantially complied with the April 2015 Board remand directives in issuing a supplemental statement of the case addressing entitlement to a higher initial evaluation for cognitive impairment and adjudicating the claim with consideration of a TDIU prior to June 9, 2014, and the Board finds that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. For the entire rating period, from August 27, 2012, cognitive impairment as a residual of cerebrovascular disease has been mild in degree, manifested by occupational and social impairment with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress due to symptoms which include memory loss, depression, and anxiety. 2. For the entire rating period from August 27, 2012 to September 17, 2013, the Veteran was not able to secure and follow substantially gainful or more than marginal employment due to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for cognitive impairment as a residual of cerebrovascular disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9326 (2015). 2. Resolving reasonable doubt in the Veteran's favor, for the entire rating period prior to September 17, 2013, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.321, 3.340, 3.341, 4.16(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO issued December 2007 notice addressing the Veteran's initial claim for service connection, which met the VCAA notice requirements. Once service connection is granted and the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). Therefore, no further notice is needed under the VCAA to address the initial rating claim and TDIU on appeal. Moreover, because this decision constitutes a full grant of the benefits sought on appeal with regard to a TDIU, no further discussion regarding VCAA notice or assistance duties is required to address that claim. Pursuant to the Board's most recent April 2015 remand, the RO issued a supplemental statement of the case addressing the appeal for a higher initial rating for cognitive impairment. VA has made reasonable efforts to obtain relevant records and evidence. The information and evidence that has been associated with the claims file includes lay statements, VA medical records, and VA examinations. The Board finds that the AOJ substantially complied with a prior August 2013 Board remand in obtaining updated VA examinations to address the severity of the Veteran's service-connected residuals. The Board finds that August 2012, April 2014, July 2014, and September 2014 VA central nervous system and psychiatric examinations are adequate for rating purposes because they were performed by medical professionals, were based on a review of the record and history and symptomatology from the Veteran, and a thorough examination of the Veteran to include mental status examinations. See Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). If two evaluations are potentially applicable, the higher evaluation 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds that symptoms related to the Veteran's cognitive disorder have not changed in severity over the course of the appeal period to warrant a staged rating. The Veteran is in receipt of an initial 30 percent rating for cognitive impairment secondary to cerebrovascular disease under Diagnostic Code 9326. Under Diagnostic Code 9326 (dementia due to other neurologic or general medical conditions), a 30 percent rating is assigned 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent disability rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the veteran's own occupation or name. 38 C.F.R. § 4.130. In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (hereinafter DSM- IV). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. Id. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has generally embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. See Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In rating psychiatric disabilities under 38 C.F.R. § 4.130, the Federal Circuit has held that a claimant's eligibility for a percent rating requires not only the presence of certain symptoms or others of similar severity, frequency, and duration, but also that those symptoms have caused occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100, reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). GAF scores from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect 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 co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work). DSM-IV at 46-47. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). As noted above, in a January 2013 rating decision, the AOJ granted service connection for vascular dementia and assigned a 0 percent, noncompensible, rating effective August 27, 2012, the date the Veteran was shown to have been diagnosed with cognitive impairment secondary to cerebrovascular disease. This was deemed to be a full grant of the benefit sought on appeal. The Veteran did not submit an appeal to the initial rating decision and did not appeal the effective date assigned for service connection for vascular dementia. In September 2014, the RO granted a higher initial 30 percent rating for cognitive impairment, previously rated as vascular dementia, effective August 27, 2012. The initial rating for cognitive impairment is currently on appeal and the Board finds that the proper appeal period is from August 27, 2012, the date service connection was granted for the Veteran's disability. After a review of all the evidence, lay and medical, the Board finds that for the entire rating period, the severity of the Veteran's cognitive impairment is mild and approximates a rating based on occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks consistent with a 30 percent rating under Diagnostic Code 9326. See 38 C.F.R. § 4.130. The Board finds that the criteria for a higher 50 percent evaluation have not been met or more nearly approximated at any time during the rating period. VA examinations dated in August 2012, April 2014, and July 2014 reflect mild cognitive impairment on objective testing measures, and a September VA psychiatric examination shows that the Veteran's cognitive disorder results in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress due to symptoms such as memory loss, depression, and anxiety. An August 2012 VA examination shows that the Veteran had mild cognitive impairment secondary to cerebrovascular disease. The Veteran reported memory problems, such as forgetting names of acquaintances and occasional disorientation while driving. He felt that this memory was worsening, and at the time of the examination, reported writing everything down in order to remember. On a mini-mental state examination for grading cognitive state, the Veteran had a total score of 28/30, with impairment in shown in recall. The VA examiner opined that the Veteran's central nervous system disorders did not impact his ability to work, stating that there was no residual neurologic deficit from diagnosed cerebrovascular disease other than mild cognitive impairment. September 2013, April 2014, and July 2014, and VA examinations show that the Veteran's mental health condition did not result in gross impairment in thought process or communication. An April 2014 VA examination reflects problems with memory. On a mini mental status examination, the Veteran scored 29/30 and only had a problem with one of the delayed verbal recall items. The results of examination were stated to be normal. A July 2014 VA examination shows that the Veteran scored a 26/30 on a mini mental examination. The score was stated to be lower than when previously tested. The examiner stated that this implied that the Veteran's cognition was worsening, as expected in these cases. The VA examiner opined, still, that the Veteran had mild cognitive impairment, which was worsening. The Veteran was deemed to be unemployable due to a combination impairment due to dizziness, headaches, and cognitive impairment. A September 2014 VA psychiatric examination identified a diagnosis of cognitive disorder, not otherwise specified, with no other mental disorders diagnosed. Cognitive disorder was stated to result in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. In addition to symptoms of memory loss, the VA examiner identified symptoms of depressed mood and anxiety. The results of the July 2014 mini mental state examination, noting mild cognitive impairment, were cited in evaluating the severity of Veteran's cognitive impairment. The Board finds that VA examinations of record provide competent, credible, and probative evidence addressing severity of the Veteran's cognitive impairment. VA examinations included a review of the record, relevant symptomatology was identified, and mini-mental status examinations were completed or discussed in order to evaluate the severity of the Veteran's cognitive impairment. VA treatment records dated from 2013 to 2014 also identify treatment for mild, recurrent depressive disorder. Psychiatric symptoms identified in VA treatment records include depression, anxiety, and poor recent memory, and some isolation from family and friends. Mental status examinations showed that the Veteran had adequate hygiene and spontaneous speech and language. His mood was depressed or anxious. The Veteran denied hallucinations, delusions, and suicidal ideation. Thought processes were coherent, logical, and goal-directed. Insight and judgement were variously described as limited, fair, and good. Impairment of recent memory was identified. The Veteran has been assessed with symptoms of depression and anxiety in addition to memory loss. As it is not possible to separate the effects of the service-connected disability from nonservice-connected psychiatric disabilities in this case, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2005); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so.) Based on the evidence as discussed above, the Board finds that weight of the evidence shows that cognitive impairment and psychiatric symptoms are mild, and include impairment of recent memory or recall, depression, anxiety, and some social isolation. The weight of the evidence shows that the Veteran's occupational and social impairment due to his cognitive impairment is mild in degree, and results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks consistent with his assigned 30 percent rating. While a July 2014 VA examiner identified some increase in the severity of the Veteran's cognitive impairment based on the mini mental state examination, symptoms were still assessed as mild in degree. The Board finds that, for the entire rating period, the Veteran's symptoms and the severity of the symptoms are consistent with the criteria for a 30 percent rating under Diagnostic Code 9326 See 38 C.F.R. § 4.130. The Board finds that for the entire rating period the Veteran has not met or more nearly approximated the criteria for a 50 percent disability rating based on his cognitive impairment. See 38 C.F.R. § 4.130. The Board finds that the weight of the evidence does not support a finding of occupational and social impairment with reduced reliability and productivity due to the Veteran's cognitive impairment and related symptoms. While the evidence of record indicates that the Veteran is unemployable due to a combination of service-connected neurological symptoms, which include dizziness, headaches, and cognitive impairment; the Veteran's cognitive impairment, alone, is not shown to result in more than mild occupational or social impairment. While the Veteran is shown to have symptoms related to impairment of short memory, some impairment of judgment, depression, anxiety, and some social isolation; the Board finds that his overall level of impairment due to cognitive disorder and associated symptoms does not more nearly approximate the criteria for a higher 50 percent disability rating. The record shows that cognitive disorder is mild in degree. Even with consideration of any overlapping symptoms related to the diagnosis of recurrent depressive disorder, his psychiatric disability has been consistently assessed in VA treatment records as being mild in degree. For these reasons, the Board finds that the Veteran's cognitive impairment does not more nearly approximate the level of impairment described for a 50 percent rating. For these reasons, the Board finds that the criteria for an initial rating in excess of 30 percent for cognitive impairment are not met or more nearly approximated. See 38 C.F.R. § 4.130. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The threshold factor for extraschedular consideration 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. Therefore, initially, 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. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that for the increased rating period, the symptomatology and impairment caused by the Veteran's cognitive disorder is specifically contemplated by the schedular rating criteria for dementia, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9326, specifically provide for disability ratings based on a combination of clinical psychiatric symptoms and findings. In this case, considering the lay and medical evidence, the Veteran's cognitive disorder is manifested by symptoms, to include memory loss, depression, and anxiety. These symptoms are part of or similar to symptoms listed under the schedular rating criteria. The schedular rating criteria specifically include evaluations based on occupational and social impairment. The schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, 16 Vet. App at 442; see also 38 C.F.R. § 4.21 (2014). For these reasons, the Board finds that the schedular rating criteria are adequate to rate the Veteran's cognitive impairment, and referral for consideration of an extraschedular evaluation is not warranted. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2015). In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect of cognitive impairment on social and occupational functioning. In the absence of exceptional factors associated with service-connected cognitive impairment, the Board finds that the criteria for referral for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. While the evidence of record suggests that the combined effect of the Veteran's multiple service-connected disabilities do render him unemployable, the Board finds that such occupational and functional impairment is adequately addressed by the Veteran's separate ratings, and by the Board's grant of a TDIU. The Board finds that the Veteran's cognitive impairment, or combined impairment due to service-connected disabilities, does not otherwise create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. For these reasons, the Board finds that referral for an extraschedular evaluation is not warranted. TDIU Law and Analysis TDIU ratings 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In evaluating a veteran's employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2014). 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. 38 C.F.R. §4.16(a). A TDIU was granted by the AOJ from September 17, 2013. Because the present appeal for a TDIU was raised by evidence of record, in conjunction with the appeal for a higher initial rating for cognitive impairment, the Board will consider whether a TDIU is warranted from August 27, 2012, the effective date of service connection for cognitive impairment. During the applicable rating period, from August 27, 2012 to September 17, 2013, the Veteran was service-connected for migraine headaches, rated 30 percent disabling, cognitive impairment, rated 30 percent disabling, diabetes mellitus, rated 20 percent disabling, peripheral neuropathy of the right upper, left lower, and right lower extremities, each rated 10 percent disabling, dizziness associated with cerebrovascular disease, rated 10 percent disabling, left shoulder impingement syndrome, rated 10 percent disabling, and a left shoulder scar, rated as noncompensible. The Veteran was in receipt of a combined 80 percent rating for the entire appeal period. Because cerebrovascular disease and residuals of such and peripheral neuropathy were service-connected as secondary to diabetes mellitus, the Board finds that with the exception of left shoulder impingement syndrome and a left shoulder scar, the Veteran's service-connected disabilities all result from a common etiology. See 38 C.F.R. § 4.16(a) (disabilities resulting from a common etiology or a single accident will be considered as one disability). Accordingly, the Board finds that for the entire rating period, the Veteran has met the schedular criteria for a total disability rating based on individual unemployability. Therefore, application of a TDIU is appropriate so long as the severity of the Veteran's service-connected disabilities warrants such a rating during this time period. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The next step is to determine whether the Veteran was unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2015). The Board finds that for the entire rating period from August 27, 2012 to September 17, 2013, the Veteran has not been able to secure and follow gainful or more than marginal employment due to service-connected disabilities. With regard to the Veteran's educational and employment history, a June 2014 Application for Increased Compensation Based on Individual Unemployability shows that the Veteran was employed full time as a school teacher until November 2004. Additionally, the Veteran identified having four years of college education. Prior VA examinations dated in February 2010 and March 2011 and more recent November 2014 VA examinations note that the Veteran retired from teaching in 2003 or 2004 due to eligibility by age or duration of work. The evidence is at least in equipoise as to whether the Veteran was unemployable during the applicable appeal period due to service-connected disability. An August 2012 VA examiner opined that the Veteran's central nervous system disorders did not impact his ability to work, stating that there was no residual neurologic deficit from diagnosed cerebrovascular disease other than mild cognitive impairment. In a separate August 2012 VA examination for migraine headaches, the VA examiner opined that the Veteran's headaches did impact his ability to work, but opined that the Veteran was able to obtain, perform, and secure substantial gainful occupation, however, with restriction to light, sedentary work with several precautions. These precautions included avoiding any job stressors which may precipitate migraine, and making sure the Veteran had migraine medication nearby. The Board finds that while August 2012 VA examinations indicate that the Veteran was not unemployable due to his cognitive impairment alone, or due to migraine headaches alone, the VA examiners did not consider the Veteran's occupational impairment due a combination of all his service-connected disabilities. Conversely, a September 2013 VA examination shows that the Veteran is unemployable due to a combination of his service-connected central nervous system disorders. The September 2013 VA examiner opined that the Veteran's headaches and dizzy spells prevented him from holding a steady full-time employment, making him unemployable. The September 2013 findings are supported by findings from a later July 2014 VA examination, which show that the Veteran was unable to hold a full-time regularly scheduled occupation due to cognitive impairment, recurrent headaches, and dizziness. While the examinations were dated at the end of and shortly after the relevant appeal period, the Board finds that they provide some probative, contemporaneous evidence with regard to the Veteran's employability due to a combination of his service-connected disabilities during the relevant appeal period from August 27, 2012. Additionally, the record shows that during the relevant appeal period, the Veteran had at least some degree of physical limitation to employment due to diabetes mellitus, peripheral neuropath, and left shoulder impingement syndrome. Resolving reasonable doubt in the Veteran's favor, the Board finds that for the entire appeal period from August 27, 2013, a TDIU is warranted. (CONTINUED ON NEXT PAGE) ORDER A higher initial rating, in excess of 30 percent, for cognitive impairment secondary to cerebrovascular disease is denied. For the entire rating period, from August 27, 2012 to September 17, 2013, a TDIU is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs