Citation Nr: 1620695 Decision Date: 05/20/16 Archive Date: 05/27/16 DOCKET NO. 13-17 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for an anxiety disorder, not otherwise specified (NOS), and a depressive disorder NOS. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from January 1978 to November 1986. This case was previously before the Board of Veterans' Appeals (Board) on appeal, based on disagreement with the initial rating assigned for this decision, a March 2012 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for an anxiety disorder NOS and a depressive disorder NOS at a disability rating of 30 percent, effective from March 12, 2009. The Board remanded the claim for an increased rating for the service connected psychiatric disability for additional development in February 2014. This remand characterized this claim as also including the matter of entitlement to TDIU and also requested development with respect to this matter. See Rice v. Shinseki, 22 Vet. App. 447(2009) (holding that a claim for TDIU is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran). Pursuant to the development requested therein, a June 2015 rating decision increased the rating for the service connected psychiatric disorder to 50 percent effective from March 12, 2009. As higher ratings for this disability are available, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for an increased rating for the service connected psychiatric disability remains on appeal as set forth on the title page. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. For the entire period on appeal, the service-connected psychiatric disability has not resulted in manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas and the inability to establish and maintain effective relationships. 2. The only service connected disability is that resulting from anxiety disorder NOS and a depressive disorder NOS. 3. The Veteran reported on his application for TDIU that he has education through four years of high school and work experience in a stock room; he also reported therein that he became too disabled to work in 2008. 4. The Veteran's service-connected psychiatric disability does not prevent him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for an initial rating in excess of 50 percent for anxiety disorder NOS and a depressive disorder NOS have not been met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9413 (2015). 2. The criteria for a TDIU are not met. 38 U.S.C.A §§ 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 3.340, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations 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 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, a March 2009 letter and attachments, sent prior to the initial decision issued in March 2012, advised the Veteran of the evidence and information necessary to substantiate his underlying claim for service connection for a psychiatric disablity, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Thereafter, and as indicated in the Introduction, the March 2012 rating decision granted service connection for the psychiatric disability at issue and assigned a 30 percent rating for this disability, effective from March 12, 2009. Also as previously noted, the Veteran subsequently appealed with respect to the propriety of the initially assigned rating from this grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for the psychiatric disability at issue was granted and an initial rating (increased later to 50 percent, also effective from March 12, 2009) was assigned by the March 2012 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required with respect to the claim for an increased rating for the service connected psychiatric disability because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With respect to TDIU, a March 2015 letter, as noted below, advised the Veteran of the evidence and information necessary to substantiate this matter, and this letter was sent prior to the initial formal adjudication of this issue by a June 2015 supplemental statement of the case. Relevant to the duty to assist, the Veteran's service treatment records (STRs) and post service treatment reports have been obtained. Also received was an April 2009 assessment by a private mental health professional. The Veteran was afforded VA psychiatric examinations in November 2012 and May 2015, and in their totality, the reports from these examinations and the other clinical evidence of record are adequate to make the determinations below. The Board finds these examinations adequate to make these determinations as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria and providing sufficient detail so as to allow the Board to make a fully informed determination with respect to the matters adjudicate below. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Therefore, the Board finds that the examination reports of record are adequate to make the determinations herein, and no further examinations to make these determinations is necessary. As instructed by the Board's February 2014 remand, the available VA outpatient treatment reports, dated at the time of this writing through March 2015 as contained in the Virtual VA file, were obtained, as were the complete records of treatment provided by L.G. of Psychological Consulting Services. The Veteran was also issued a letter in March 2015 providing VCAA notice with respect to claims for TDIU, and the reports from the May 2015 VA examination are in accord with the February 2014 remand. As such, the Board thus finds that there has been substantial compliance with the Board's February 2014 remand directives concerning the matters adjudicated herein. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Thus, the Board finds that VA has fully satisfied the duty to notify and assist with respect to the claims adjudicated herein. In the circumstances of this case, additional efforts to assist or notify with respect to issues adjudicated herein in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case with respect to the issues decided below, at least insofar as any errors committed were not harmful to the essential fairness of the decision with respect to such issues. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of the claims adjudicated herein. II. Analysis The Board has reviewed all of the evidence of record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims adjudicated herein. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. A. Increased Rating for Service-Connected Psychiatric Disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Ratings Schedule) found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the appellant's favor. 38 C.F.R. § 4.3. See also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating an appellant's service-connected disabilities. 38 C.F.R. § 4.14. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's service-connected anxiety disorder NOS and depressive disorder NOS has been rated under DC 9413, and the criteria for rating such psychiatric disability are set forth in the General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula, 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent 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 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the "American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders" (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." [An interim final rule was issued on August 4, 2014, that replaced the DSM-IV with the DSM-V. However, the provisions of this interim final rule do not apply to the instant case, as these provisions only apply to applications for benefits that are received by VA or that are pending before the RO on or after August 4, 2014.] There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Summarizing the relevant evidence pertinent to the claim for increased compensation for the service connected psychiatric disability with the above provisions in mind, the reports from an April 2009 evaluation by a private mental health professional, L.G., noted that the Veteran did not socialize, had memory problems, lost concentration easily, and had a hard time finishing projects. L.G. diagnosed the Veteran with post-traumatic stress disorder (PTSD), and found as follows: [The Veteran's] PTSD symptoms severely impacted all areas of his life, including occupational social, and personal. His intrusive thoughts and hyperarousal prevent him from being consistently productive or reliable at any job. His impaired concentration and memory functions prevent him from learning any new tasks. Because of his hyper-irritability[,] he is severely limited in his ability to initiate or sustain work relationships. Because of his hypervigilance and isolating behaviors[,] he is also severely limited in his ability to initiate or sustain social relationships. Due to the severity and chronicity of his symptoms[,] his prognosis for recovery is poor. Therefore I consider him to be permanently disabled and unemployable The reports from the February 2012 VA examination reflect the VA psychologist, in reporting what best summarized the level of occupational and social impairment resulting from the Veteran's psychiatric disability as set forth in the rating criteria, selecting the statement "[o]ccupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with normal routine behavior self-care and conversation." As such, the examiner selected the level of disability characterized by a 30 percent rating under 38 C.F.R. § 4.130. The GAF score assigned following the examination was 60, which corresponds to moderate difficulty in social or occupational functioning. With respect to impact of the psychiatric disability upon employment, the February 2012 VA examiner noted that the Veteran had been laid off from his job 2 years previously due to company downsizing and the Veteran denied having any problems on that 12 year job or in previous positions since he left the military. He reported that his previous job was fairly isolating, which he preferred, and that he currently occasionally did carpentry work for a friend. As such, the examiner stated that the impact of the Veteran's psychiatric problems on occupational functioning was in the mild range due to some difficulty with concentration and attention and fatigue due to sleep problems. Findings from the examination included a depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The most recent VA psychiatric examination conducted in May 2015, documented to have included a review of the claim file, reflects the following commentary by the examiner, Per the [February 2014 remand] request that this examiner " . . .comment on whether the Veteran's anxiety disorder NOS and depressive disorder NOS, render him unable to secure or follow a substantially gainful occupation" disregarding age or non-service connected disabilities, this examiner opines it is beyond a clinician's scope of practice to opine whether or not an individual is employable, as this is a legal determination rather than a clinical one; however, the following is a review of how current symptoms affect occupational functioning. First, [the Veteran's] psychiatric symptoms are best characterized as mild to moderate and result in some impairment in daily activities, but he is generally functioning fairly well and has some meaningful interpersonal relationships. For example, he reported a reasonably good relationship with his family-of-origin, a fair to good relationship with his wife, and a good relationship with his children. He has a friend whom he visits with fairly regularly. He has some enjoyed activities (e.g. woodworking, reading the Bible, or going to church). While he is not formally employed, he occasionally does some carpentry work. That being written, [the Veteran] also identified some strain in his relationships and activities secondary to service-connected mental health symptoms - most notably wanting to isolate from others, decreased interest in activities, impaired sleep, fatigue, irritability, and difficulty concentrating. As such, he would likely have some difficulty interacting with others and focusing on job tasks. When asked by this examiner, Mr. [redacted] stated his current mental health symptoms impact his day-to-day functioning "a lot . . . reckon just dealing with the frustration and not being able to deal with things that I should be able to deal with. Not being able to communicate with my wife like I should be able to... I reckon I just snap and it happens so quick that I don't have a chance to stop it . . . it just happens." Thereafter, in reporting what best summarized the level of occupational and social impairment resulting from the Veteran's psychiatric disability as set forth in the rating criteria, the examiner provided the statement "[o]ccupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation." As such, a VA examiner again selected the level of disability characterized by a 30 percent rating under 38 C.F.R. § 4.130. In addition, the GAF score assigned by the examiner was again 60. Findings from the examination included a depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, a flattened affect, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The VA psychologist who conducted the May 2015 VA examination found fault with L.G.'s April 2009 determination that the Veteran was unemployable as follows: A present review of [L.G.'s April 2009 determination] appears to suggest [L.G.] did not rely on any collateral information or psychological testing in this initial evaluation of [the Veteran]. [L.G.] did not mention the possible effect of [non-service connected] sleep apnea on the Veteran's presentation. [L.G.] made no reference to the Veteran's notable work history (e.g. working at Nortel for 12 years without missing work and being "laid off" for downsizing rather than poor performance) only stating 'His intrusive thoughts and hyperarousal prevent him from being consistently productive or reliable at any job.' Despite having no supporting information, a notable work history, and to be continuing to work intermittently in carpentry, [L.G.] opined '[d]ue to the severity and chronicity of his symptoms, his prognosis for recovery is poor. Therefore, I consider him to be permanently disabled and unemployable.' Applying the pertinent legal criteria to the facts as set forth above, the Board notes initially that the adjudication of the Board includes the responsibility of determining the weight to be given to the evidence of record, and this responsibility includes the authority to favor one medical opinion over another. See Cathell v. Brown, 8 Vet. App. 539, 543 (1996); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Guerrieri v. Brown, 4 Vet. App. 467 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the claimant's history, and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board finds persuasive the fact that, unlike the April 2009 assessment of the Veteran's employability by L.G., the May 2015 assessment is supported by a thorough rationale and reflects consideration of the Veteran's extensive employment history; the Veteran's own report at the February 2012 VA examination that he had no problems in any job he held after discharge from the military; and the fact that he currently is able to perform carpentry work for a friend. As such, the Board finds the March 2015 opinion to be the most definitive opinion of record as to the impact of the Veteran's service connected psychiatric disablity on occupational functioning as it is fully supported and based on an accurate factual predicate as to the Veteran's ability to work. See Guerrieri, Sklar, Prejean, Miller, supra. In short, and based on review of the evidence set forth above, the Board finds that, since the effective date of the grant of service connection, the Veteran's service connected psychiatric disablity has not resulted in manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas and the inability to establish and maintain effective relationships. Thus, for the entire appeal period, an initial rating in excess of 50 percent is not warranted at any time. 38 C.F.R. § 4.130, DC 9413. In determining that the criteria for a rating in excess of 50 percent for the Veteran's service connected psychiatric disability are not met, it is emphasized that the undersigned has considered the applicable rating criteria not as an exhaustive list of symptoms, but rather, as examples of the type and degree of the symptoms or effects that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule in determining that a rating in excess of 50 percent is not for assignment. See supra, Mauerhan. Instead, this determination reflects the level of the Veteran's occupational and social functioning-while acknowledging that there are some limitations associated with the Veteran's service connected psychiatric disability-that the Veteran maintains, to include as demonstrated by the GAF score of 60 following the February 2012 and May 2015 VA examinations and the relationships with others the Veteran maintains as described at the May 2015 VA examination. In fact, the 50 percent currently in effect reflects consideration of the guidance in Mauerhan to the extent that the conclusions by VA examiners as to the level of impairment specified by the criteria codified at 38 C.F.R. § 4.130 have not been found to be determinative. The Board further finds that a staged schedular rating for the Veteran's service connected psychiatric disability is not warranted as his symptomatology has remained stable throughout the appeal. In making the above determinations, the Board has considered carefully the Veteran's contentions with respect to the nature of his service-connected disability at issue and notes that his lay testimony is competent to describe certain symptoms associated with this disability. The Veteran's history and symptom reports have been considered, including as presented in the clinical evidence discussed above, and have been contemplated by the disability rating that has been assigned. Moreover, the competent psychiatric evidence offering detailed specific findings is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability at issue. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent clinical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected disability at issue. The Board also has contemplated whether the case should be referred for extra-schedular consideration for the disability at issue. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. 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. Second, 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 "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board has compared the level of severity and symptomatology of the Veteran's service-connected disability at issue with the established criteria found in the rating schedule. The Board finds that the disability at issue is fully addressed by the rating criteria under which the service-connected psychiatric disability is rated. In this regard, a wide range of signs and symptoms are contemplated in the applicable rating criteria for the service connected psychiatric disability, and in evaluating this disability, all relevant symptomatology, to include those not enumerated in the rating criteria, have been considered. See Mauerhan, supra. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with the service-connected disability addressed above. As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating for the service-connected disability addressed above is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In sum, the preponderance of the evidence is against a rating in excess of 50 percent for the service connected psychiatric disability at any time since the grant of service connection for this disability. Therefore, the benefit of the doubt doctrine is not applicable, and the claim for an increased rating for the service connected psychiatric disability must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 49. B. TDIU TDIU may be assigned 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. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). 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 her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular TDIU 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 her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b (7)]). It also suggests "a living wage." Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16(a) ("marginal employment shall not be considered substantially gainful employment"). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to her service-connected disabilities but the functional impairment caused solely by her service-connected disabilities. VBA Fast Letter 13-13 (June 17, 2013). The only service connected disability is the Veteran's psychiatric disorder addressed above; as such, the minimum scheduler criteria for TDIU under 38 C.F.R. § 4.16(a) are not met. However, even when the percentage requirements are not met, entitlement to a total rating, on an extra-schedular 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. See 38 C.F.R. §§ 3.321(b), 4.16(b). In his VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) filed in April 2015, the Veteran reported that he had education through four years of high school and work experience in a stock room. He also reported therein that he became too disabled to work in 2008. As set forth above, the undersigned has found the conclusion following the May 2015 VA examination as to the impact of the Veteran's psychiatric disability on employment to be more probative than the April 2009 determination in this regard by the private medical health professional. As such, and given (by the Veteran's own report to an examiner) the Veteran's extensive employment history with no problems due to psychiatric disability; the fact that he is currently able to perform carpentry work for a friend; and the meaning of the GAF score of 60 assigned by VA examiners, the record simply does not reflect findings that would indicate that all employment-including, for instance, that which would not require extensive interaction with others-would be precluded by the service connected psychiatric disability. The sole fact that a claimant, as in the Veteran in the instant case after being laid off due to company downsizing, has difficulty obtaining employment is not sufficient for a grant of TDIU, and a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). As such, 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. Id. In this case, the weight of the evidence is simply against the conclusion that the Veteran's service connected psychiatric disability renders him incapable of working with consideration of his employment and educational history In short therefore, and for the reasons stated above, the Board finds that the probative weight of the negative evidence as to the functional impacts of the service connected psychiatric disability exceeds that of the positive with respect to the claim for TDIU. As such, the benefit of the doubt doctrine is inapplicable with respect to this issue, and the claim for TDIU must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102; Gilbert, 1 Vet. App. at 49. ORDER An initial rating in excess of 50 percent for an anxiety disorder NOS and depressive disorder NOS is denied. Entitlement to TDIU is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs